REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

SECOND SECTION

JUDGMENT

MEHMET BARANSU (2)

Application no. 2015/7231

17 May 2016

III. THE FACTS

[7-59]. In the Taraf newspaper where the applicant was working as a reporter, the news entitled “The Fatih Mosque would be bombed – Name of the Coup is Sledgehammer (Balyoz)”, “Detention of two thousand persons” and “Sledgehammer Government – These teams would bomb the mosques” were published respectively on 20 January 2010, 21 January 2010 and 22 January 2010. The persons making the news in question were the applicant and two other journalists working in the same newspaper with the applicant.

The applicant submitted copies of three DVDs and one CD forming a basis for the news on 21 January 2010 and a document of 2.229 pages, nineteen CDs and ten voice records on 29 January 2010 to the İstanbul Chief Public Prosecutor’s Office. The applicant informed that these documents and materials had been delivered to him by an informant.

As a result of the investigation conducted on the basis of information included in these documents and materials delivered by the applicant, the case known to the public as the “Sledgehammer Case” was initiated by the İstanbul Chief Public Prosecutor’s Office. At the end of the proceedings, many accused were convicted. At the end of appellate review, the conviction decision rendered in respect of 237 accused was upheld by the 9^th Criminal Chamber of the Court of Cassation. The Constitutional Court held in individual applications lodged by certain accused that there had been a breach of the right to a fair trial.

Upon the Constitutional Court’s judgment finding a violation and the complaints raised by the accused persons tried in the case, the chief public prosecutor’s office initiated an investigation into the evidence on which the decision was based and mainly consisting of digital data in 2014. On the other hand, as the expert reports received during the re-trial made upon the judgment finding a violation concluded that the digital evidence predicated in the case was not reliable, these reports were also included in the investigation file.

The applicant was taken into custody on 1 March 2015 within the scope of the above-cited investigation, and the İstanbul Chief Public Prosecutor’s Office requested the applicant be detained for the offences of “establishing an organization for committing an offence”, “destroying, misusing, obtaining by fraudulent, stealing the documents pertaining to the security of the State”, “obtaining confidential documents concerning the security of the State”, and “disclosing information concerning the security of the State and political benefit and required to be kept confidential”.

The İstanbul Magistrate’s Judge Office no. 5 rejected the request for the offence of “establishing an organization for committing an offence” as there was no strong suspicion of offence and for the offence of “disclosing information concerning the security of the State and political benefit and required to be kept confidential” as the period of filing a case which was specified in the Press Law had been time-barred. The applicant’s detention was ordered for the offences of “obtaining confidential documents concerning the security of the State” and “destroying, misusing, obtaining by fraudulent, stealing the documents pertaining to the security of the State”.

IV. EXAMINATION AND GROUNDS

60. The Constitutional Court, at its session of 17 May 2016, examined the application and decided as follows.

A. The Applicant’s Allegations

61. The applicant maintained that he was detained on remand for obtaining the documents which were known to the public as “the Sledgehammer coup plan” and subject-matter of the news published in the Taraf newspaper five years ago; that the request for his detention for publishing the documents in question had been rejected by the relevant magistrate judge’s office due to the expiry of the time-limit which was set out in Article 26 of the Press Law no. 5187 as a condition for trial and prescribed for filing a criminal case; however, the magistrate judge’s office ordered his detention on the charge of obtaining the same documents. He further asserted that his obtaining and disclosure of the information in the news fell within the scope of journalistic (press) activities; that the document constituting an offence and alleged to have been destroyed was not an original copy but a photocopy; that he had not used copies of the documents in question for any purpose other than publishing, and these documents were then submitted to the relevant prosecutor’s office; that his detention had been ordered in spite of not committing the imputed offences; that the fact that he did not attempt to flee in spite of having been previously taken into custody and released for several times was not taken into consideration by the magistrate judge’s office which acknowledged the risk of his fleeing by merely considering the probable punishment to be imposed on him; and that there was no risk of his tampering with evidence. He also claimed that the grounds as to why conditional bail would remain insufficient were not enumerated in his detention order, and his detention was contrary to the principle of proportionality; that his appeal against the detention order and his request for release were rejected without any justification; that the magistrate judge’s offices ordering his detention on remand were in breach of the principle of the legal judge and failed to provide assurance of impartial and independent court; that the documents forming a basis for the accusation were not shown to him; and that he could not effectively exercise his right to challenge as he could not examine the investigation file on which a restriction order was issued and there was a closed-circuit mechanism which was devoid of safeguards afforded by a tribunal. The applicant accordingly alleged that there was a breach of the right to personal liberty and security safeguarded by Article 19 of the Constitution, the freedoms of expression and the press safeguarded by Articles 26 and 28, the right to a fair trial safeguarded by Article 36, the principle of natural judge safeguarded by Article 37 as well as the right to an effective remedy safeguarded by Article 40 thereof. He requested the Court, in the first place, to indicate a measure which would ensure his release and to find a violation of the relevant articles.

B. The Court’s Assessment

62. The Constitutional Court is not bound by the legal qualification of the incidents by the applicant and, in itself, makes the legal definition of the facts (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). In this respect, the Court found it appropriate to examine,

i. the applicant’s complaint that the magistrate judge’s offices ordering his detention on remand were in breach of the principle of the natural judge and failed to provide safeguards afforded by an impartial and independent tribunal, within the scope Article 19 § 3 of the Constitution;

ii. his complaints that the documents forming a basis for the accusation were not shown to him; and that he could not effectively exercise his right to challenge as he could not examine the investigation file on which a restriction order was issued and there was a closed-circuit mechanism which was devoid of safeguards afforded by a tribunal, within the scope Article 19 § 8 of the Constitution;

iii. his complaints that his detention was ordered in spite of not committing the imputed offences; that the document constituting an offence and alleged to have been destroyed was not an original copy but a photocopy; that he had not used copies of the documents in question for any purpose other than publishing; that the fact that he did not attempt to flee in spite of having been previously taken into custody and released for several times was not taken into consideration by the magistrate judge’s office which acknowledged the risk of his fleeing by merely considering the probable punishment to be imposed on him; that there was no risk of his tampering with evidence; that the grounds as to why conditional bail would remain insufficient were not enumerated in his detention order, and his detention was contrary to the principle of proportionality; that his appeal against the detention order and his request for release were rejected without any justification, within the scope Article 19 § 3 of the Constitution;

iv. his complaints that he was detained on remand for obtaining the documents which were subject-matter of the news published as a part of journalistic activities; that the request for his detention for publishing the documents in question had been rejected by the magistrate judge’s office due to expiry of the time-limit which was set out in Article 26 of Law no. 5187 as a condition for trial and prescribed for filing a criminal case; however, the magistrate judge’s office ordered his detention on the charge of obtaining the same documents; and that his obtaining and disclosure of the information in the news fell within the scope of journalistic (press) activities, within the scope Articles 26 and 28 of the Constitution. 

63. Besides, the applicant requested to be released two days after his appeal against his first detention order. The İstanbul Magistrate Judge’s Office no. 4 assessed and, through its decision dated 19 March 2015, rejected the applicant’s request by indicating that the first detention order was legitimate and that any concrete evidence to end his detention had not been submitted. It appears that, within the scope of the individual application lodged about 1 month and 20 days after the first detention order, the applicant generally complained of unlawfulness of his detention but did not explicitly raise any allegation that his detention exceeded the reasonable time. The Constitutional Court is not liable, in every case, to ex officio review lawfulness and to establish whether fundamental rights have been violated, on the basis of general and abstract allegations (see Sami Özbil, no. 2012/543, 15 October 2014, § 50). For these reasons, it has been concluded that the applicant’s complaints about his detention must be examined under Article 19 § 3 of the Constitution to establish whether his detention is lawful.

1. Admissibility

a. Alleged Contradiction of the Magistrate Judge’s Offices to the Principles of the Natural Judge, Independent and Impartial Judge

64. The applicant maintained that the magistrate judge’s offices ordering detention contradicted the principles of the legal judge and did not provide the safeguards of an impartial and independent tribunal.

65. In its observations, the Ministry made a reference to similar judgments rendered by the European Court of Human Rights (“the ECHR”) and indicated that “the tribunal” imposing a restriction on the right to personal liberty and security must be established by law; that in order to establish whether a tribunal can be considered “independent”, regard must be had to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence; that the magistrate judge’s offices were established by the Law on Amendments to the Turkish Criminal Code and Certain Laws no. 6545 and dated 18 June 2014, and judges already holding office were assigned to these offices by the High Council of Judges and Prosecutors (“the HCJP”) according to their career, qualification and competency; and that the magistrate judge’s offices were also organized, likewise the other courts, in accordance with the principle of an independent tribunal and guarantee of tenure of judges.

66. In his counter-statement against the observations of the Ministry, the applicant maintained that Article 5 of the European Convention on Human Rights (“the Convention”) requires “a judge” or “a tribunal” to have certain fundamental judicial guarantees, qualifications or characteristics; that these tribunals must be established by law and have the guarantee of independence and impartiality; that they must observe the principles of adversarial proceedings and equality of arms; that the tribunal ordering detention must have the guarantee of the natural judge; and that one of the requirements sought for tribunals was to inspire confidence. He also indicated that in criminal law, the principle concerning the establishment of the tribunal by law implied that the tribunal must be established by law prior to commission of the offence; however, the magistrate judge’s offices ordering his detention were established by the ruling party, as a project, subsequent to the date when the imputed offences had been committed; and that these offices were not independent and impartial.

67. As stated in the previous judgments of the Court, the principle of natural judge is defined as the pre-determination, by law, of the venue of jurisdiction to deal with the case before an offence is committed or a dispute arises. This principle precludes the establishment of judicial bodies or appointment of judges after an offence is committed or a dispute arises, in other words, the appointment of judges by considering the accused or parties of the case (see the Court’s judgment no. E.2014/164, K.2015/12, 14 January 2015).

68. Nevertheless, the guarantee of legal (natural) judge cannot be interpreted to the effect that recently established tribunals or judges recently assigned to the already existing tribunals can in no way preside over trials concerning pre-committed offences. On condition of not being limited to a certain incident, person or community, cases where a recently established tribunal or a judge recently assigned to an already existing tribunal deals with disputes that have arisen prior to establishment or appointment are not contrary to the principle of legal judge (see the Court’s judgment no. E.2014/164, K.2015/12, 14 January 2015).

69. Accordingly, in the event that a provision does not aim at determining the venue of jurisdiction to deal with the case after a certain offence is committed and applies to all relevant cases following its entry into force, it cannot be contrary to the principle of natural judge (see the Court’s judgment no. E.2009/52, K.2010/16, 21 January 2010).

70. In Article 9 of the Constitution, it is explicitly enshrined that judicial power will be exercised by independent courts, and Article 138 thereof explains what should be inferred from the independence of courts. Pursuant to the latter provision, “No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions”. Independence means that, in resolving a dispute, the tribunal must be independent vis-à-vis, and must not be under the influence of, the legislative and executive powers, parties of the case, third parties as well as the other judicial organs (see the Court’s judgment no. E.2014/164, K.2015/12, 14 January 2015).

71. The manner of appointment of members of the tribunal, their terms of office, existence of safeguards against the outside pressures and the question whether it presents an appearance of independence are of importance in determining whether a tribunal is independent vis-à-vis the administration and parties of the case (see Yaşasın Aslan, no. 2013/1134, 16 May 2013, 28).

72. Article 6 of the Convention explicitly mentions of the right to a trial by an impartial tribunal, as an element inherent in the right to a fair trial. On the other hand, Article 36 of the Constitution does not include any explicit indication as to the independence of tribunals. However, pursuant to the Court’s case-law, this is also an implicit element of the right to a fair trial. Besides, regard being had to the fact that impartiality and independence of tribunals are two elements complementing one another, it is explicit that, as required by the principle of holism, Articles 138, 139 and 140 of the Constitution must also be taken into consideration in making an assessment as to the right to a trial by an impartial tribunal (see Tahir Gökatalay, no. 2013/1780, 20 March 2014, § 60).

73. The notion of impartiality of tribunals is explained through the institutional structure of the tribunals and attitude of the incumbent judge towards the cases to be dealt with.  In the first place, legal and administrative arrangements concerning the establishment and organization of tribunals must not give the impression that they are not impartial. As a matter of fact, institutional impartiality is related to the independence of tribunals. For impartiality, the pre-requisite of independence must be primarily fulfilled, and additionally, the institutional structure must appear to be impartial (see the Court’s judgment no. E.2014/164, K.2015/12, 14 January 2015).

74. The second element pointing out the impartiality of tribunals concerns the subjective attitudes of judges towards the case to be dealt with. The judge to handle the case must treat equally, be impartial and unbiased vis-à-vis the parties of the case as well as deliver a decision, on the basis of his personal conviction, in line with legal rules and without remaining under any pressure or inspiration. This is what’s expected of judges by the Constitution and laws. Acts to the contrary are made subject to disciplinary and criminal sanctions by the legal order (see the Court’s judgment no. E.2014/164 K.2015/12, 14 January 2015).

75. In the present case, the magistrate judge’s offices alleged not to be independent and impartial rejected the public prosecutor’s requests and rendered decisions in favour of the suspects. It accordingly appears that the İstanbul Magistrate Judge’s Office no. 5 dismissed the request for the applicant’s detention on remand for having disclosed information concerning the security and political interests of the State and required to be kept confidential and for having established an organization to commit an offence.

76. It is revealed that the relevant judges are performing the above-cited duties after being appointed by the HCJP on the basis of a legal arrangement of general nature. Therefore, in the absence of any concrete biased act or attitude towards the applicant and by taking into account facts of which authenticity and nature could not be precisely established as well as assessments and comments put forth during political discussions, it is not possible to acknowledge that the incumbent judges have  failed to act in an independent and impartial manner (see Hikmet Kopar and Others [Plenary], no. 2014/14061, 8 April 2014, § 114; and Hidayet Karaca [Plenary], no. 2015/144, 14 July 2015, § 78).

77. As a matter of fact, the Court rejected the request for annulment of the relevant provision of the law whereby the magistrate judge’s offices were established on the grounds that, as all other judges, the magistrate judges were appointed by the HCJP and had the guarantee of tenure of judges afforded by Article 139 of the Constitution; that these tribunals were organized in the manner prescribed by the Constitution and in accordance with the principles of independent tribunals and tenure of judges, as all other courts; that there was no factor in their organizational structure and functioning that led to the conclusion that these tribunals would fail to be impartial; that besides in cases where it was proven by concrete, objective and plausible evidence that the judge lacked impartiality, there also existed procedural provisions precluding him from handling the case (see the Court’s judgment no. E.2014/164 K.2015/12, 14 January 2015).

78. For the reasons explained above, as it was clear that there was no violation with regard to the applicant’s allegation that he was detained on remand by the magistrate judge’s office, which was established in breach of the principle of natural judge, which lacked independence and impartiality and which was not in the capacity of a tribunal, this part of the application was declared inadmissible for being manifestly ill-founded.

Mr. Alparslan ALTAN did not agree with this conclusion.

b. Alleged Inability to Effectively Exercise the Right to Challenge

79. The applicant alleged that he was not provided with the documents forming a basis for the accusation; and that he could not effectively exercise his right to challenge as he could not examine the investigation file due to the restriction order imposed thereon and there was a close-circuit mechanism which was devoid of safeguards afforded by a tribunal. 

80.  In its observations, the Ministry indicated by making a reference to the similar judgments of the Constitutional Court and the ECHR that certain evidence may be kept confidential in order to conduct the investigation efficiently and prevent the suspects from tampering with evidence; however, this legitimate purpose cannot be extended so as to significantly impair the right to defence; that essential information must be provided to the suspect’s defence counsel in the appropriate manner in order for an assessment as to the lawfulness of detention; that it was not requisite to specify all accusations during detention, and it was sufficient to ensure access by the suspect or the accused or his lawyer to information and documents that were of fundamental significance and forming a basis for detention. It was further stated that in the present incident, the applicant had examined the documents, the basis of the accusation against him, before submitting them to the İstanbul Chief Public Prosecutor’s Office; that the questions asked to the applicant during his interrogation by the police were sufficiently explicit for the evidence as to the accusation against him; that in his challenges to detention, the applicant made explanations concerning fundamental aspects forming a basis for the accusations against him; and that it was within the discretionary power of the law-maker to afford the magistrate judge’s offices with the power to review the challenges to detention, and this would not render the exercise of the right to challenge ineffective.

81. In his counter-statements against the observations of the Ministry, the applicant alleged that he could not have access to investigation file due to the restriction order, which was in breach of the principles of adversarial proceedings and equality of arms; and that there was a closed-circuit mechanism whereby challenges to detention were reviewed.

82. As required by Article 19 § 4 of the Constitution, individuals arrested or detained would be promptly notified, in all cases in writing, or orally when the former is not possible, of the grounds for their arrest or detention and the charges against them; in cases of offences committed collectively, this notification would be made, at the latest, before the individual is brought before a judge.

83. Article 19 § 8 of the Constitution reads as follows:

“Persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful.”

84. Pursuant to this provision of the Constitution, any person deprived of his liberty is entitled to apply to a competent judicial authority in order to ensure speedy conclusion of proceedings regarding him and his immediate release if his detention is unlawful. Although it is not possible to afford all safeguards inherent in the right to a fair trial through this procedure prescribed in this provision, it must be ensured that concrete safeguards appropriate for the circumstances of the alleged detention must be provided by a judicial decision (see Mehmet Haberal, no. 2012/849, 4 December 2013, §§ 122 and 123).

85. In review of the challenges against the continued detention or the request for release, the principles of equality of arms and adversarial proceedings must be observed (see Hikmet Yayğın, no. 2013/1279, 30 December 2014, § 30).

86. The principle of equality of arms means that the parties to a given case are ensured to be subject to the same conditions, in respect of procedural rights, and to raise their allegations and defence submissions before a tribunal, in a reasonable manner, without giving an advantage to one party over the other. An advantage afforded not to both parties but merely to one party would be in breach of the principle of equality of arms even if there exists no evidence indicating that it has led to an unfavourable outcome (see Bülent Karataş, no. 2013/6428, 26 June 2014, § 70).

87. Besides, the principle of adversarial proceedings requires that the parties be granted the right to be informed of and make comments on the case file, thereby participate effectively in the proceedings. This principle is closely related with the principle of equality of arms, and these two principles are complementing one another. That is because in cases where the principle of adversarial proceedings is breached, the balance between the parties for presenting their case would be impaired (see Bülent Karataş, § 71).

88. A restriction may be imposed on access to certain evidence at the investigation stage particularly for the purposes of protecting fundamental rights of third parties, maintaining public interest or securing methods to which judicial authorities have recourse in conducting investigation. Therefore, it cannot be said that the restriction imposed on the defence counsel’s right to examine the investigation file, with a view to properly conducting the investigation phase, is not necessary for the democratic order of the society. However, the restriction to be imposed on the right to access to investigation file must be proportionate to the aim intended to be reached with the restriction order and must not preclude the sufficient exercise of the right to defence (see the Court’s judgment no. E.2014/195 K.2015/116, 23 December 2015, § 107).  

89. The ECHR considers that deprivation of access by the defence counsel to the file is in breach of the principle of equality of arms (see Ceviz v. Turkey, no. 8140/08, 17 July 2012, § 41). However, according to the ECHR, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person. Nevertheless, any difficulties caused to the defendant by a limitation on his rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see A. and Others v. the United Kingdom, no. 3455/05, 19 February 2009, § 205).

90. The person arrested must be informed, in a non-technical and plain language, of the basic factual and legal reasons for his arrest and thereby, he should have the opportunity to have recourse to a tribunal whereby he could challenge the lawfulness of deprivation of his liberty under Article 19 § 8 of the Constitution. Article 19 § 4 of the Constitution entails that information conveyed to the person arrested or detained during his arrest or detention include a full list of the imputed offences; in other words, he must be provided with information or an explanation as to all evidence forming a basis for accusations against him (see Günay Dağ and Others [Plenary], no. 2013/1631, 17 December 2015, § 175).

91. In the event that the applicant is asked questions, during the hearing, as to the contents of documents access to which has been restricted and he makes a reference to the content of these documents in his challenge to the detention order, it must be acknowledged that he has had access to the documents forming a basis for his detention as well as a sufficient knowledge of their contents, and thereby, he has the opportunity to sufficiently challenge the reasons for his detention. In such a case, the person detained has a sufficient knowledge of the content of documents forming a basis for his detention (see Hidayet Karaca, § 107).

92. In the present case, regard being had to the applicant’s defence submissions before the police and the court, it has been observed that the applicant was informed of the nature of imputed offences; that during his interrogation by the police, twenty eight questions concerning the imputed offence were put to him, and thereby, the accusations against him were explained in detail; that these questions also revealed the contents of certain evidence forming a basis for these charges; that he exhaustively presented his defence submissions against the accusations against him during both his interrogation by the police and hearing by the court; that in his defence submissions, he made statements also in issues concerning the content and nature of evidence as a basis for his accusation; and that as the evidence forming a basis for his accusation mainly consisted of CDs, DVDs, audio tapes and other documents that had been submitted by the applicant to the İstanbul Chief Public Prosecutor’s Office, he had been already aware of the existence and contents of such evidence in the pre-investigation period. It has been further revealed that in his petition requesting his release and submitted two days after the adjudication of his challenge against the detention order, the applicant exhaustively presented his defence submissions as to the procedures and principles, made detailed classifications of the facts and evidence forming a basis for his accusation as well as mentioned of several details included in the evidence. In addition, in the letter, dated 2 March 2015, of the İstanbul Chief Public Prosecutor’s Office concerning the request for the applicant’s detention, a detailed information was provided with respect to the acts of which he was accused and the facts and evidence (in general with the content and scope thereof) taken as a basis for the accusation. This letter was also read out to the applicant during his hearing by the İstanbul Magistrate Judge’s Office no. 5 in the presence of his defence counsels and before his interrogation. Nor did the applicant raise any complaint that his access to records of statements, expert’s reports and reports concerning other judicial processes during which he was entitled to be present was restricted, which contravened Article 153 § 3 of Law no. 5271. It has been accordingly concluded that the applicant and his defence counsels had access to information forming a basis for the accusations against him as well as for his detention.

93. Regard being had to the facts that within the scope of the judicial review of the initial period of the applicant’s deprivation of freedom on suspicion of committing an offence, the applicant and his defence counsels were notified of basic issues forming a basis for the accusations and that the applicant was also provided with the opportunity to challenge them, it cannot be acknowledged that the applicant was deprived of access to the investigation file merely due to the restriction order, and thereby the principles of equality of arms and the adversarial proceedings were breached.

94. In addition, the review of challenges against the orders issued by the magistrate judge’s offices established by virtue of Article 48 of Law no. 6545 will be conducted by the magistrate judge’s office with consecutive number, in the event that there are more than one magistrate judge’s office within the same venue of jurisdiction, pursuant to Article 268 § 3 (a) of the Code of Criminal Procedure no. 5271 (“the CCP” or “Law no. 5271”). 

95. In the present case, the applicant’s allegations that the magistrate judge’s offices ordering detention were in breach of the principles of natural judge, impartial and independent judge were declared inadmissible for being manifestly ill-founded. Therefore, the Court did not find justified the applicant’s allegation that the authority assigned to review his challenge to the detention order was the magistrate judge’s offices which were not in the capacity of an independent and impartial tribunal, and that due to this closed-circuit mechanism, there was no remedy whereby detention orders may be challenged effectively (see Hikmet Kopar and Others, § 133).

96. The Court had previously examined the request for annulment of the legal provision which set out that the authority to review the challenges to the orders issued by the magistrate judge’s offices was still held by these offices. Accordingly, the Court dismissed the request on the grounds that there was no constitutional norm requiring the review of the challenges to the orders of the magistrate judge’s offices by a higher or another court; that courts titled with the name of a province or district or having more than one “chamber” due to the workload cannot be considered to be the same tribunal in respect of the judicial activities performed and examination of appellate requests; that the magistrate judge’s offices designated as the authority to receive and examine the challenges pursuant to Articles 268 § 3, titled appeal remedy, of Law no. 5271 were entitled to review the challenged orders and adjudicate on the merits of the case; and that it was therefore an effective appeal remedy (see the Court’s judgment no. E.2014/164, K.2015/12, 14 January 2015).

97. For these reasons, as it is clear that there is no violation with regard to the applicant’s allegations that the principles of equality of arms and adversarial proceedings were impaired due to the restriction order imposed at the investigation stage and that he could not effectively challenge his detention order due to the designation of the magistrate judge’s offices as the authority to receive and examine challenges, the Court found this part of the application inadmissible for being manifestly ill-founded.

Mr. Alparslan ALTAN did not agree with this conclusion.

c. Alleged Unlawfulness of Detention and Alleged Violation of the Freedoms of Expression and the Press

98. The applicant maintained that the detention order issued in the absence of strong suspicion of guilt and reasons for detention was unlawful; and that he was detained on remand for his journalistic activities.

99. Given the circumstances of the present case, it has been considered that the alleged violation of the applicant’s right to personal liberty and security must be examined in conjunction with the alleged violations of their freedoms of expression and the press.

100. In order for an assessment to be able to be made as to whether the legal remedies were exhausted within the scope of the alleged violations of the freedoms of expression and the press, the subject-matter of the application must be determined within the scope of the allegation in question. The subject-matter of the application before the Constitutional Court is the alleged violations of the applicant’s freedoms of expression and the press on account of his “detention on remand” for having obtained the documents that were subject-matter of the news published in the newspaper he was taking office, and it is not related to the merits of the investigation or to the probable outcome of the investigation or the proceedings.

101. In order that the alleged violations of the freedoms of expression and the press due to detention can be examined, the continuing investigation or proceedings does not need to be completed. It has been observed that the applicant challenged the detention order against him, which underlies his allegations, and thereby exhausted the available domestic remedies. In its recent judgment, the Constitutional Court held that in order for an examination as to the effect of the pre-trial detention of the applicants who were a journalist due to the impugned news published on their freedoms of expression and the press, it would not need to wait for the conclusion of the proceedings (see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, § 58).

102. The ECHR examined the allegations as to the effects of the detention on the freedoms of expression and the press without requiring the finalization of the investigation and prosecution phases and dismissed the Government’s objection as to non-exhaustion of domestic remedies (see Nedim Şener v. Turkey, no. 38270/11, 8 July 2014, §§ 88, 90, 96; and Şık v. Turkey, no. 53413/11, 8 July 2014, §§ 77-79, 85).

103. The alleged unlawfulness of the applicant’s detention on remand and alleged violations of his freedoms of expression and the press must be declared admissible for not being manifestly ill-founded and there being no other grounds to declare them inadmissible.

2. Merits

104. The Constitutional Court’s examination in the instant case is limited to the lawfulness of the applicant’s detention on remand and to the effects of the detention on his freedoms of expression and the press, independently of the investigation and trial conducted against the applicant and of the probable outcome of the investigation or the proceedings.

105. Accusation means notification, by competent authorities, to a person that he has allegedly committed an offence (see Ersin Ceyhan, no. 2013/695, 9 January 2014, § 32). The questions whether the above-cited acts imputed to the applicant constitute an offence, whether legal elements of the offence/offences have been formed in respect of the applicant and whether he committed the imputed offences may be established by judicial authorities conducting the investigation and/or trial procedures on the basis of evidence obtained at the end of the investigation/trial to be conducted in harmony. The question whether the conclusion reached by the judicial authorities is lawful may be determined through the appellate review. Except for circumstances giving rise to violation of fundamental rights and freedoms due to an interpretation explicitly contrary to the Constitution and explicit arbitrariness in assessment of evidence, the determination as to whether the imputed acts constitute an offence, interpretation of legal provisions and application of these provisions to concrete cases are within the discretionary power of the inferior courts (see Mehmet Haberal, § 77).

106. The review to be carried out at this stage does not concern the merits of the investigation process pending in respect of the applicant or, if filed, merits of the case to be heard. Nor does it aim at determining whether the offence(s) imputed to the applicant occurred. 

a. Alleged Unlawfulness of Detention

i. The Applicant’s Allegations and Observations of the Ministry

107. The applicant maintained that in spite of not having committed the imputed offences, his detention was ordered; that the impugned document alleged to have been destroyed was not original but a photocopy; that he did not use the copies he had obtained for any purposes other than publication; that in spite of being previously taken into custody and released, he did never attempt to flee; however, this fact was ignored by the relevant tribunal which acknowledged, by merely taking into consideration the probable punishment to be imposed, that there was a risk of his fleeing; that there was no risk, on his part, of tampering with the evidence; that the grounds as to why the conditional bail would be insufficient was not specified in his detention order, and his detention was contrary to the principle of “proportionality”; and that his challenges to the detention order and requests for release were dismissed without any justification.

108. In its observations, the Ministry, making a reference to the similar judgments of the Constitutional Court and the ECHR, indicated that in order to deprive a person of liberty on suspicion of having committed an offence, there must exist a reasonable suspicion of, or plausible grounds for, guilt; that for there to be a reasonable suspicion, there must be facts or information which would satisfy an objective observer  -who will also take into consideration the evidence obtained and circumstances of the concrete case- that the person concerned may have committed an offence; that the severity and gravity of the offence imputed to the applicant are elements concerning the assessment of his risk of fleeing; that existence of reasonable suspicion may justify detention to a certain period; that the applicant himself acknowledged that he had obtained the confidential document titled “Egemen Operation Plan”; that this document was not published by him; and that the applicant was also accused of destroying some confidential documents obtained by him or using them for other purposes.

109. In his counter-statement, the applicant noted that the gravity of punishment to be imposed cannot merely be a presumption for the risk of fleeing; that although it was alleged that he did not make use of (certain) documents at his disposal in his capacity as a journalist and report them as news, it was the journalist himself who was entitled to determine which document would be used within the scope of a journalistic activity; that a journalist cannot be forced to disclose his journalistic source; and that his detention was arbitrary.

ii. General Principles

110. Right to personal liberty and security is a fundamental right that ensures the prevention of arbitrary interference by the State with the freedoms of individuals (see Erdem Gül and Can Dündar, § 62).

111. In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. Certain circumstances under which individuals may be deprived of their freedoms, provided that the procedure and conditions of detention are prescribed by law, are listed in Article 19 §§ 2 and 3 thereof. Therefore, the freedom of a person may be restricted only in cases where one of the circumstances specified in this article exists (see Murat Narman, no. 2012/1137, 2 July 2013, § 42).

112. Likewise the provisions enshrined in the Constitution, Article 5 § 1 of the Convention sets out that everyone has the right to personal liberty and security and that no one can be deprived of liberty save in the cases specified in subparagraphs (a)-(f) and in accordance with a procedure prescribed by law (see Mehmet İlker Başbuğ, no. 2014/912, 6 March 2014, § 42).

113. The obligation to ensure the restrictions on personal liberty to be in compliance with the principle and procedure prescribed in law is, in principle, incumbent upon the administrative bodies and inferior courts. The administrative bodies and courts are liable to abide by legal rules concerning principles and procedures. Objective of Article 19 of the Constitution is to protect individuals against arbitrary deprivation of liberty, and under exceptional circumstances prescribed therein, the restrictions on personal liberty must be in conformity with the objective of this provision (see Abdullah Ünal, no. 2012/1094, 7 March 2014, § 38).

114. Article 19 § 3 of the Constitution reads as follows:

“Individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention. Arrest of a person without a decision by a judge may be executed only when a person is caught in flagrante delicto or in cases where delay is likely to thwart the course of justice; the conditions for such acts shall be defined by law.”

            115. The relevant provision stipulates that individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention. In this context, the prerequisite for detention is the existence of a strong indication that the individual has committed an offence. This is a condition sine qua non for having recourse to the detention measure. Therefore, the accusation must be supported with plausible evidence likely to be considered strong. Nature of the facts and information which may be considered as plausible evidence is mainly based on the particular circumstances of each case (see Mustafa Ali Balbay, no. 2012/1272, 4 December 2013, § 72).

116. However, on the basis of the above-mentioned consideration, for accusing a person, it is not absolutely necessary that adequate evidence be available at the stage of his arrest or detention on remand. In fact, the aim of detention is to conduct the judicial process in a more reliable manner by means of substantiating or eliminating the suspicions forming a basis for detention on remand. Accordingly, the facts forming a basis for the suspicions on which the accusation is based and the facts which would be discussed at the subsequent stages of the criminal proceedings and which would be a basis for conviction must not be considered at the same level (see Mustafa Ali Balbay, § 73).

117. Detention measure is regulated in Article 100 et. seq. of Law no. 5271. Pursuant to Article 100, a person may be detained on remand only in case of existence of facts indicating strong suspicion of his guilt and a ground for his detention. Such grounds are also enumerated therein. According to this Article, a “ground for arrest” may be deemed as existing; a) if the suspect or accused had fled, eluded or if there are specific facts which justify the suspicion that he is going to flee; b) if the conduct of the suspect or the accused tend to show the existence of a strong suspicion that he is going to attempt to destroy, hide or tamper with the evidence and to put an unlawful pressure on witnesses, the victims or other individuals. The same article also provides a list of the offences for which a ground for detention may be deemed as existing, in the event that there is a strong suspicion of their having been committed (see Ramazan Aras, no. 20112/239, 2 July 2013, § 46).

118. Pursuant to Article 19 § 3 of the Constitution, an individual may be detained in order to obtain evidence necessary for filing a case against him, provided there is strong indication of his guilt. Aim of detention is to proceed with the criminal investigation with a view to confirming or refuting suspicions against him (see Dursun Çiçek, no. 2012/1108, 16 July 2014, § 87).

119. In addition, detention that is a severe and harsh measure may be deemed reasonable only if it is proven that another less severe measure would not be sufficient for protecting individual’s interest and public interest. In this respect, lawfulness of deprivation of liberty is not sufficient for applying detention measure. This measure must also be “necessary” under the specific circumstances of the present case (see Erdem Gül and Can Dündar, § 68). This is also required by the element of “necessity”, one of the components of the “proportionality” principle that is among the criteria sought for restricting fundamental rights and freedoms set out in Article 13 of the Constitution (see the Court’s judgment no. E.2015/40 K.2016/5, 28 January 2016). In order for a balance required to be struck between the aim pursued and the interference made, measures of conditional bail must be primarily assessed and the question as to why conditional bail would remain insufficient must be justified in detention orders (see Engin Demir [Plenary], no. 2013/2947, 17 December 2015, § 69).

120. Besides, issues as to the interpretation of law or as to factual or legal errors, which are included in the inferior courts’ decisions, cannot be dealt with during the individual application process unless fundamental rights and freedoms enshrined in the Constitution are violated. It is also within the inferior courts’ discretionary power to interpret legal provisions on detention and apply them to the present cases (see Abdullah Ünal, § 39). However, it is the Constitutional Court’s duty to examine whether the conditions set out in Article 19 § 3 of the Constitution are indicated in the grounds of detention orders which are subject-matter of the individual application and whether the proportionality principle, one of the criteria sought for restriction of fundamental rights and freedoms and set out in Article 13 of the Constitution, has been observed in applying detention measure under the specific circumstances of the present case (see Erdem Gül and Can Dündar, § 69).

121. Detention of an individual by a judicial decision devoid of reasoning cannot be accepted. However, a suspect or accused may be detained on remand on the basis of reasons justifying his detention. However, a detention order with excessively short reasoning or without any legal provision as a ground should not be assessed within this scope. In cases where the authority for challenge or appeal authority does not provide detailed justification in its decision for concurring with the challenged or appealed decision or the grounds specified therein, this is not, in principle, in breach of the right to a reasoned decision (see Hanefi Avcı, no. 2013/2814, 18 June 2014, §§ 70 and 71).

iii. Application of Principles to the Present Case

122. In the present case, an investigation was conducted against the applicant by the İstanbul Chief Public Prosecutor’s Office which requested the applicant’s detention for establishing an organization to commit an offence; destroying, misusing, obtaining by trickery, stealing documents concerning the security of the State; obtaining confidential documents concerning the security of the State; and disclosing information concerning the security and political interests of the State and required to be kept confidential.

123. However, the İstanbul Magistrate Judge’s Office no. 5, which assessed the request for the applicant’s detention, rejected the request insofar as it related to the offence of establishing an organization to commit an offence, set out in Article 220 of Law no. 5237, for lack of strong suspicion of guilt, as well as to the offence of disclosing information concerning the security and political interests of the State and required to be kept confidential, set out in Article 329 of the same Code, for expiry of the time-limit which was set out in Article 26 of the Press Law no. 5187.

124. Therefore, the applicant was not detained on remand on account of the news published in 2010 in the Taraf Newspaper where he took office, the contents thereof, the aim pursued in publication of these news or their probable impacts or consequences. 

125. It appears that the magistrate judge’s office issued a detention order in respect of the applicant for “obtaining confidential documents concerning the security of the State” set out in Article 327 of Law no. 5237 and “destroying, misusing, obtaining by trickery, stealing documents concerning the security of the State” set out in Article 326 thereof.

126. The constitutional review as to whether the right to personal liberty and security has been violated must be primarily conducted concerning the question as to whether there was a “strong indication” of guilt, which is one of the compulsory conditions enumerated in Article 19 § 3 of the Constitution for applying detention measure. Having regard to the fact that the subject-matter of the application was the detention measure and that there was a pending investigation against the applicant, the Constitutional Court restricted its review with the question as to whether reasoning of the detention order issued by the magistrate judge’s office and the request letter for detention had indicated the concrete facts revealing the strong suspicion of guilt.    

127. In the present case, in ordering the applicant’s detention on 2 March 2015, the İstanbul Magistrate Judge’s Office no. 5 acknowledged the existence of strong suspicion of guilt for the imputed offences of destroying, misusing, obtaining by trickery and stealing documents concerning the security of the State and obtaining confidential documents concerning the security of the State by relying on the facts that the applicant obtained the “Sledgehammer coup plan” and CDs/DVDs and documents pertaining thereto as well as Egemen Operation Plan which was “strictly confidential” and included information required to be kept confidential for the security of the State or its domestic or foreign political interests; that 118 confidential documents recorded in CDs obtained by the applicant were revealed to be stolen; that according to his statement, he destroyed these documents, even if copies, instead of submitting them to the relevant authorities; that however, it could not be determined yet whether he had indeed destroyed them; that it was unknown where the confidential documents that could not be found were or by whom they were retained or for what purpose they would be used; and that the person said to have provided the applicant with these documents and whether there had been persons acting together with him could not be determined.

128. It has been inferred from the request letter for detention issued by the İstanbul Chief Public Prosecutor’s Office and the reasoning of the detention order issued by the İstanbul Magistrate Judge’s Office no. 5 that the document forming a basis for the offences of destroying, misusing, obtaining by trickery, stealing documents concerning the security of the State and obtaining confidential documents concerning the security of the State, for which the applicant’s detention was ordered, was the Egemen Operation Plan.

129. The Egemen Operation Plan was, according to the findings of the investigation authorities, obtained from the plan room of the 1^st Army Command. It has been observed that the question how the plan was taken out of the place where it had been kept could not be clarified; and that at the end of the investigation conducted by the Military Prosecutor’s Office of the 1^st Army Command into the leaking of the documents submitted by the applicant to the İstanbul Chief Public Prosecutor’s Office from the military location where they were preserved, a decision of non-prosecution was rendered, due to the expiry of the period of limitation for filing a case, in respect of the relevant offences.  

130. It has been observed that E.S., whose statement was taken, in the capacity of complainant, by the İstanbul Chief Public Prosecutor’s Office on 4 December 2014 and who made presentation of the land assault to be conducted in case of a probable war within the scope of the Egemen Operation Plan, stated that the CD stolen from the Plan Room of the 1^st Army Command had included also the Egemen Operation Plan and the annexes thereto; that the presentation which concerned a land assault planned within the scope of the Egemen Operation Plan in case of a possible war and which was made at the 1^st Army Command between 3 March 2003 and 5 March 2003 had not been completely included in the documents and seminar audio tapes submitted by the applicant to the İstanbul Chief Public Prosecutor’s Office; that very private and confidential documents (information) concerning the strategy to be applied in case of a war had been included in this presentation; and that it was not known where these records were. It has been further revealed that out of the ten audio tapes submitted by the applicant and enumerated as from “1/1” to “1/10”, the sixth tape was not enumerated as “6/10” according to the number sequence assigned, but as “6”; and that the tape enumerated six did not include the presentation in question but a presentation made by an academician concerning earthquake. Although it could not be determined where the audio tape including the presentation was and whether it was destroyed, E.S. informed the investigation authorities of the fact that the relevant country had learned the content of presentation in the audio tapes taken from the Plan Room of the 1^st Army Command and took measures which would render impossible an operation to be carried out towards the region planned to be attacked during the land assault.

131.  Accordingly, the Presidency of the General Staff had primarily found out that, among the documents submitted by the applicant, the information included in the Egemen Operation Plan was to be kept confidential for the security, domestic and foreign political interests of the State and likely to jeopardize the war preparations or efficiency, or military operations, of the State in case of its disclosure; and that among the documents submitted by the applicant, there were 118 “strictly confidential” documents within the scope of the Egemen Operation Plan. The Presidency of the General Staff notified this situation, and sent a list of these documents, to the İstanbul Chief Public Prosecutor’s Office. 

132. The applicant indicated that the documents, which had been delivered to him by a person (introduced himself as a retired military officer) unknown to him, included military operation plans in addition to the Egemen Operation Plan; and that he had submitted these documents to the chief public prosecutor, without making any news concerning the content thereof, as they were confidential and were not eligible for being subject-matter of news.

133. It therefore appears that the documents obtained by the applicant from a retired military official (according to his explanation) and subsequently submitted to the İstanbul Chief Public Prosecutor’s Office were confidential instruments concerning the security of the State (in case of its disclosure, it may jeopardize the State’s war preparations or its efficiency in war or military actions); and that these documents did not appear in the news published in the Taraf Newspaper.  

134. Regard being had to the fact that the Egemen Operation Plan, which was among the documents submitted to the İstanbul Chief Public Prosecutor’s Office, was not reported as news in the Taraf Newspaper and which was classified by the General Staff as “strictly confidential”, was also embodying an operation strategy to be followed in case of a war with a country, the Court found reasonable the public authorities’ assessments that obtaining or learning of these information and documents by any person other than military authorities or relevant public authorities would have a risk leading to extremely severe outcomes in terms of security and diplomatic relations of the country.

135. Accordingly, given the above-summarized content of the investigation file of the applicant, the request letter for detention issued by the İstanbul Chief Public Prosecutor’s Office, the acts imputed to him, the evidence relied on and the grounds specified in the detention order of the İstanbul Magistrate Judge’s Office no. 5, it has been concluded that there was strong indication that the applicant might have committed an offence.

136. On the other hand, it must be assessed whether the detention measure was “necessary” within the scope of the proportionality principle, which is one of the criteria set out in Article 13 of the Constitution. Taking into account the investigation pending against the applicant, the Court would conduct the constitutional review in respect thereof on the basis of only the detention process and the reasons for the applicant’s detention. 

137. In the detention order issued by the Magistrate Judge’s Office, the reasons for detention were specified by indicating that there was a risk of fleeing due to the amount of sentence likely to be imposed on the applicant for the offences in question; and that the investigation had not been concluded yet and had been pending in a comprehensive and multi-directional level. It was also stated that the measure of conditional bail would be insufficient given the period of sanction set out in the relevant Law for the imputed offences; and that the detention was a proportionate measure.

138. The applicant delivered 3 DVDs and 1 CD on 21 January 2010, a bag of documents consisting of 2.229 pages as well as 19 CDs and 10 audio tapes on 29 January 2010 to the İstanbul Chief Public Prosecutor’s Office. It has been observed that all information and documents, which were among the documents and materials delivered by the applicant, were not reported as news; and that the news published were, in general, related to the “Sledgehammer coup plan” which was subsequently told by the Presidency of the General Staff not to be in the possession of the Turkish Armed Forces (TAF). In this respect, certain documents and texts were published in the Taraf Newspaper where the applicant was a reporter on and subsequent to 20 January 2010 and it was indicated therein that a structure within the TAF was planning to stage a coup, and “the Sledgehammer coup plan” and other operation plans had been prepared to that end. This news was prepared by the applicant and his colleagues Y.Ç. and Y.O. working in the same newspaper. These publications and the subsequent process remained on the public agenda for a long period, and the TAF staff whose names were given in the documents delivered by the applicant and many of whom were high-ranking officials were subsequently investigated and prosecuted. There is no information indicating that an investigation was conducted against the applicant or an offence was imputed to the applicant during this process. Nor was the applicant heard as a suspect or an accused in the course of the investigation and proceedings conducted against the TAF staff on the basis of the documents delivered by him.

139. It has been observed that upon the criminal complaint of certain accused persons tried within the scope of the trial, in respect of which the Constitutional Court rendered a judgment finding a violation in the case of the TAF staff, the investigation as a result of which the applicant was detained on remand was initiated in 2014; that during the re-trial made following the Court’s judgment finding a violation, the fact established in the expert’s reports that the documents submitted by the applicant to the İstanbul Chief Public Prosecutor’s Office and forming the basic foundation of the case were not reliable was also made subject to the investigation which was conducted on this basis; and that the investigation into the criminal complaint made by the relevant court was also merged with the investigation file no. 2014/16320.

140. It has been revealed that the applicant was started to be investigated and later detained on remand in line with the statement of the complainant E.S. that the documents submitted by the applicant to the İstanbul Chief Public Prosecutor’s Office did not contain the presentation concerning the strategy to be followed in case of a probable war, which had been prepared by him within the scope of the Egemen Operation Plan, and as a result of the information provided, as to the content and nature of the documents, by the Presidency of the General Staff to the investigation authorities.

141. Accordingly, it was concluded that there was a reason for detention within the scope of the investigation conducted against the applicant. Moreover, given the investigation process, it has been revealed that there was no ground for reaching the conclusion that the detention was not necessary.

142. In this respect, it has been observed that the circumstances of the incident which is the subject-matter of the Court’s recent judgment of Erdem Gül and Can Dündar ([Plenary], no. 2015/18567, 25 February 2016) differ from the circumstances of the incident which is subject-matter of the present individual application. Such differences may be summarized as follows:

i. While concluding that there was a violation of the applicants’ rights to personal liberty and security in the judgment of Erdem Gül and Can Dündar, the following facts were relied on: the applicants had been detained on the basis of two news published by the applicants; that any concrete evidence other than these news was not specified in the detention order; and that issues and photo similar to those specified and used in the impugned news had appeared also in news published in another newspaper sixteen months ago. However, in the incident giving rise to the individual application, it has been revealed that although the İstanbul Chief Public Prosecutor’s Office requested the applicant’s detention for establishing an organization to commit an offence and disclosing information concerning the security and political interests of the State and required to be kept confidential, the incumbent magistrate judge’s office rejected the request for his detention for these offences; and that thus, the news published in 2010 in the Taraf Newspaper where the applicant was serving, the content, purpose, possible effects and consequences of these news were not taken as a basis for the applicant’s detention. It has been observed that the basis for the accusations due to which the applicant’s detention was ordered was the allegations that confidential documents within the scope of the Egemen Operation Plan, which was required to be kept confidential for the security and domestic or foreign political interests of the State and which was, in case of being disclosed, likely to endanger the war preparations or efficiency or military operations of the State and which was taken away from a military office, had been obtained; that a certain part of these documents (even their copies) had been destroyed or destructed; and that certain information included in these documents had been leaked to another country. It has been also observed that the plan in question had not been published in the news in the Taraf Newspaper.

  ii. It has been found out that, in the judgment of Erdem Gül and Can Dündar, during the period of six months starting from the date when it was announced to the public that an investigation had been initiated against the applicants to the date when the applicants were detained on remand, the investigating authorities could not obtain any evidence other than the news in question. However, in the present individual application, the investigation against the applicant had been initiated upon the criminal complaint filed, following the Constitutional Court’s judgment finding a violation, by persons tried within the scope of the case which was subject-matter of that judgment. In the course of the period elapsing until the applicant’s detention, the investigation authorities took the statements of the complainants and witnesses, conducted inquiries into the nature of the relevant documents and assessed the expert reports received during the re-trial initiated upon the Constitutional Court’s violation judgment and the criminal complaint of the court conducting the trial. It has been understood that at the end of these processes, the investigation was directed against the applicant.  

143. For these reasons, the Court found no violation of the right to personal liberty and security safeguarded by Article 19 § 3 of the Constitution with respect to the alleged unlawfulness of detention.

Mr. Alparslan Altan did not agree with this conclusion.

b. Alleged Violation of the Freedoms of Expression and the Press

i. The Applicant’s Allegations and Observations of the Ministry

144. The applicant maintained that he was detained on remand for having obtained the documents which were the subject-matter of the news published within the scope of journalistic activities; that although the request for his detention for having published these documents was rejected by the incumbent magistrate judge’s office due to the expiry of the time-limit set out as a condition for trial in Article 26 of Law no. 5281 and prescribed for filling a criminal case, the magistrate judge’s office ordered his detention for having obtained the same documents; and that the acts of obtaining and disclosing information that was subject-matter of the news fell into the scope of journalistic (press) activities.

145. In its observations, the Ministry indicated that the applicant’s complaints concerned, in essence, the unlawfulness of his detention; that the investigation was not related to the information and documents published and obtained for publication; that the applicant was not detained on remand due to the news published in the Taraf Newspaper, and in fact, the İstanbul Magistrate Judge’s Office no. 5 rejected the request for his detention for having disclosed information concerning the security and political interests of the State and required to be kept confidential; that the reason for his detention was stealing and destroying of 118 confidential documents with regard to the “strictly confidential” Egemen Operation Plan, which had been obtained along with CDs and DVDs of the “Sledgehammer coup plan”; and that in this respect, the investigation against the applicant was not initiated upon the reporting of an incident through the press or due to the fact that these documents were at his disposal.

146. The applicant asserted, in his counter-statements against the observations of the Ministry, that he was forced to disclose his journalistic sources; that, in his capacity as a journalist, he was entitled to keep certain confidential documents at his disposal with a view to informing the public; and that the main reason for his detention was the documents that fell into the scope of journalistic activities.

ii. General Principles

147. Relevant part of Article 26, titled “Freedom of expression and dissemination of thought”, of the Constitution reads as follows:

“Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities…

The exercise of these freedoms may be restricted for the purposes of national security, public order, public safety, safeguarding the basic characteristics of the Republic and the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation or rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary.

(…)

The formalities, conditions and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law.”

148. Relevant part of Article 28, titled “Freedom of the press”, of the Constitution reads as follows:

“The press is free, and shall not be censored…

(…)

The State shall take the necessary measures to ensure freedom of the press and information.

In the limitation of freedom of the press, the provisions of articles 26 and 27 of the Constitution shall apply.

Anyone who writes any news or articles which threaten the internal or external of the State or the indivisible integrity of the State with its territory and nation, which tend to incite offence, riot or insurrection, or which refer to classified state secrets or has them printed, and anyone who prints or transmits such news or articles to others for the purposes above, shall be held responsible under the law relevant to these offences. Distribution may be prevented as a precautionary measure by the decision of a judge, or in case delay is deemed prejudicial, by the competent authority explicitly designated by law. The authority preventing the distribution shall notify a competent judge of its decision within twenty-four hours at the latest. The order preventing distribution shall become null and void unless upheld by a competent judge within forty-eight hours at the latest.

(…)”.

149. In several judgments of the Court, basic principles concerning the freedoms of expression and the press are mentioned in detail (see Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, §§ 57-67; Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, §§ 30-38; Ali Rıza Üçer (2) [Plenary], no. 2013/8598, 2 July 2015, §§ 30-33; Ergün Poyraz (2) [Plenary], no. 2013/8503, 27 October 2015, §§ 33-39; and Medya Gündem Dijital Yayıncılık Ticaret A.Ş. [Plenary], no. 2013/2623, 11 November 2015, §§ 44).

150. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. It is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (for a similar judgment of the ECHR, see Handyside v. the United Kingdom, no. 5493/72, 24 September 1976, § 49). Existence of social and political pluralism depends on the ability to express any kind of opinion freely and in a peaceful manner (see Emin Aydın, no. 2013/2602, 23 January 2014, § 41).  

151. Freedom of the press, which is a specific aspect of the freedom of expression, is not a safeguard protecting merely the right of the press to impart and disseminate news. It is also directly related to the public’s right to receive news and ideas for ensuring democratic pluralism (see Erdem Gül and Can Dündar, § 87).

152. In addition, the freedoms of expression and the press are not absolute rights which may be subject to restrictions. As a matter of fact, the grounds for such restriction are set out in Article 26 § 2 of the Constitution, which concerns the right to expression. In restricting the freedom of the press, Articles 26 and 27 of the Constitution will in principle apply pursuant to Article 28 § 4 thereof. Besides, exceptional circumstances whereby the freedom of the press may be restricted are indicated in Article 28 §§ 5, 7 and 9 of the Constitution (see Bekir Coşkun, § 37).

153. Accordingly, the freedoms of expression and the press may be restricted for the purposes of “maintaining national security”, “preventing offences”, “punishing offenders”, “preventing disclosure of information duly classified as State secret” and “prevention of disclosure of confidential information of the State”, pursuant to Articles 26 § 2 and 28 § 5 of the Constitution. To that end, it is possible to criminalize, and impose punishment for, the act of disclosing confidential information of the State through press. Nor is there a constitutional obstacle before applying detention measure, during the investigation and prosecution to be carried out, in respect of press members alleged to have performed such acts (see Erdem Gül and Can Dündar, § 89).

154. However, in order for the press to exercise its right to impart and disseminate news, it must, in the first place, have access to news or information. The journalist’s ability to have access to any kind of news, information and opinion depends on the diversity of journalistic sources and availability of the means for reaching news. The journalist’s right to non-disclosure of his journalistic source must be protected for, at least, ensuring news to reveal the apparent truth of the relevant time when it is published. In this respect, keeping the journalistic source confidential is one of the basic requirements of the freedom of the press. This right is a part of the freedom of “receiving or imparting information or ideas without interference by official authorities” safeguarded by Article 26 of the Constitution. Accordingly, the phrase “the press is free and shall not be censored”, which is set out in the first sentence of Article 28 § 1 of the Constitution, also indirectly provides assurance for the protection of journalistic sources.

155. In the view of the ECHR, the right of journalists not to disclose their sources constitutes a part of the right to information and is not a mere privilege (see Tillack v. Belgium, no. 20477/05, 27 November 2007, § 65). In cases where confidentiality of journalistic sources is not protected, sources may be deterred from assisting the press in informing the public on matters of public interest.  As a result, the task and role of the press to provide accurate and reliable information and create an informed public opinion may be undermined. Although the freedoms of expression and the press may be restricted, any interference with the confidentiality of journalistic source cannot be compatible with the press freedom, which is safeguarded under Article 28 of the Constitution, unless it is justified by an overriding requirement in the public interest (for similar judgments of the ECHR, see Goodwin v. the United Kingdom, no. 17488/90, 27 March 1996, § 39; Roemen and Schmut v. Luxemburg, no. 51772/99, 25 February 2003, § 46; and Voskuil v. the Netherlands, no. 64752/01, 22 November 2007, § 65).

156. With respect to the disclosure of journalistic sources, Article 12 of Law no. 5187 sets forth that publishers, chief editors and authors of periodicals cannot be forced to disclose their journalistic sources of any kind including information and documents and to testify on this matter. Thereby, confidentiality of journalistic sources is under the protection of this Law. It has been further observed that this provision does not introduce any exceptions with respect to the principle of the protection of confidentiality of these sources.

iii. Application of Principles to the Present Case

157. In the present case, the İstanbul Magistrate Judge’s Office no. 5 dismissed the request for the applicant’s detention for “disclosing information pertaining to the security and political interests of the State and required to be kept confidential. It is therefore out of the question that the applicant was detained on remand due to the news published in the Taraf Newspaper in 2010.

158. It has been revealed that the document, which was delivered to the applicant, according to his statement, by a retired military officer and which was subsequently submitted by him to the İstanbul Chief Public Prosecutor’s Office, confidential documents in CDs/DVDs and audio tapes and thus the Egemen Operation Plan were not included in the news published in the Taraf Newspaper; and that this plan formed the fundamental basis for the accusation against him. The Presidency of Turkish General Staff informed the investigation authorities of the fact that the “Sledgehammer coup plan”, which was the main subject-matter of the news published in the Taraf Newspaper by the applicant and his two colleagues, as well as the plans forming a part of the Sledgehammer coup plan, namely “Belaying, Thunderstorm, Sheet” and etc., were not belonging to the TAF. Besides, there is no information indicating that an investigation was conducted against two other journalists publishing the news with the applicant or that they were detained on remand on account of the news. The applicant was not subject to an investigation following the publication of the news. He was not accused of any criminal offence within the scope of the case conducted against many TAF staff following the publication of the news. Nor was he heard as a suspect/accused or even witness.       

159. Both the applicant and the Ministry in its observations stated that the Egemen Operation Plan forming the fundamental basis for the accusations on account of which the applicant’s detention was ordered had not appeared in the news published in the Taraf Newspaper.

160. In addition, the Court examined the alleged unlawfulness of the applicant’s detention and concluded that there existed convincing evidence showing that he might have committed an offence as well as reasons for his detention. Therefore, the Court found unfounded the applicant’s allegations that the investigation was conducted merely on account of his acts falling into the scope of the freedoms of expression and the press and that he was detained on account of his journalistic activities (see Hidayet Karaca, § 116 and Günay Dağ and Others, § 202). 

161. Furthermore, in the course of his questioning by police, the applicant was asked to provide information on where, from whom and when he had received the documents and digital data including the ones subject-matter of the impugned news and submitted to the İstanbul Chief Public Prosecutor’s Office. However, the investigation authorities did not inform him that he would be exposed to a sanction if he refused to disclose his journalistic source. Within the scope of the investigation, the applicant was not accused of such an act in the letter of the prosecutor’s office requesting his detention. Nor did the detention order of the İstanbul Magistrate Judge’s Office no. 5 include any statement that the applicant was detained for non-disclosing the identity of the person who had supplied the documents or his journalistic source of the impugned news. Although he was questioned as a witness on 26 January 2010 within the scope of the investigation conducted by the military prosecutor’s office into unauthorized taking away of the impugned documents from the 1^st Army Command, he did not provide any information about the identity of the person who had supplied the documents. The military prosecutor’s office did not investigate the way how the applicant had obtained the documents or accuse him of this act. Besides, it rendered a decision of non-prosecution in this respect. Consequently, it cannot be said that the applicant was forced to disclose his journalistic source of the news published in the Taraf Newspaper or exposed to a sanction by the public authorities for non-disclosure of his source.

162. Therefore, the applicant’s detention did not constitute an interference with his freedoms of expression and the press by the nature of acts/offences on the basis of which the detention order was issued and the reasons for his arrest and detention. 

163. It has been further observed that in assessing the request for the applicant’s detention, the magistrate judge’s office showed the expiry of the time-limit prescribed for filing a case in Article 26 of the Law no. 5187 as a ground for dismissing the request for the offence of disclosing information pertaining to security and political interests of the State and required to be kept confidential; and that an assessment under the same provision was not made in respect of the offence of obtaining confidential documents pertaining to the security of the State. However, unless any right and freedom enshrined in the Constitution is violated, issues with respect to errors in interpretation of legal provisions or errors of law or fact in the inferior courts’ decisions cannot be examined within the scope of individual application system. It is within the discretionary power of the investigation authorities and the inferior courts to decide in respect of which acts and/or offences the time-limit set out in Article 26 of Law no. 5187 would apply, thus to interpret legal provisions, as well as to apply these legal provisions to the concrete cases.

164. For the reasons explained above, the Court found no violation of the freedoms of expression and the press safeguarded by Articles 26 and 28 of the Constitution.

Mr. Alparslan ALTAN did not agree with this conclusion.

V. JUDGMENT

For the reasons explained above, the Constitutional Court held on 17 May 2016:

A.   1. By MAJORITY and by dissenting opinion of Mr. Alparslan ALTAN, that the allegation that the magistrate judge’s offices were in breach of the principles of natural judge as well as the independent and impartial judge, within the scope of the right to personal liberty and security, be DECLARED INADMISSIBLE for being manifestly ill-founded;

          2. By MAJORITY and by dissenting opinion of Mr. Alparslan ALTAN, that the allegation that the right to challenge could not be effectively exercised within the scope of the right to personal liberty and security be DECLARED INADMISSIBLE for being manifestly ill-founded;

          3. UNANIMOUSLY that the alleged unlawfulness of detention within the scope of the right to personal liberty and security be DECLARED ADMISSIBLE;

          4. UNANIMOUSLY that the alleged violation of the freedoms of expression and the press be DECLARED ADMISSIBLE;

B.    1. By MAJORITY and by dissenting opinion of Mr. Alparslan ALTAN, that there was NO VIOLATION of the right to personal liberty and security safeguarded under Article 19 § 3 of the Constitution;

          2. By MAJORITY and by dissenting opinion of Mr. Alparslan ALTAN, that there was NO VIOLATION of the freedoms of expression and the press safeguarded under Articles 26 and 28 of the Constitution;

C. That the court expenses be COVERED by the applicant; and

D. That a copy of the judgment be SENT to the Ministry of Justice.

DISSENTING OPINION OF JUSTICE ALPARSLAN ALTAN

1. The Section examined the applicant’s allegations that the magistrate judge’s offices ordering his detention was contrary to the principle of legal judge and failed to afford the guarantee of an impartial and independent tribunal; that due to the closed-circuit challenge mechanism, which was devoid of safeguards afforded by a tribunal, he could not use effectively his right to challenge. The Section also examined the alleged violations of the personal liberty and security as well as the freedoms of expression and the press. The majority of the Section declared the former allegations inadmissible for being manifestly ill-founded. In terms of the latter allegation, namely the alleged violation of the personal liberty and security as well as the freedoms of expression and the press, the majority of the Section found no violation. However, I did not agree with the decision of the majority on these headings for the following grounds.

I.  SUMMARY OF THE FACTS

2. At the relevant time, the applicant was as a reporter of the Taraf Newspaper, a national daily. He made several news especially on military issues, which attracted public attention, through this newspaper.

3. On an unknown date, he was provided with 3 DVDs and 1 CD including documents concerning a coup plan by an unknown person who was his journalistic source.

4. Upon request, he submitted copies of 3 DVDs and 1 CD, the basis of the impugned news, to the İstanbul Chief Public Prosecutor’s Office, in return for a minute, on 21 January 2010.

5. About nine days after the first meeting, the same journalistic source, unknown to the applicant, had delivered a bag of documents and materials stated to be “original” to the applicant, who then submitted them to the İstanbul Chief Public Prosecutor’s Office on 29 January 2010.

6. With respect to the unauthorized taking away, from the 1^st Army Command, of the documents which were submitted by the applicant to the İstanbul Chief Public Prosecutor’s Office, an investigation was conducted by the Military Prosecutor’s Office of the 1^st Army Command. However, person(s) taking away the documents from the military unit could not be identified. The Military Prosecutor’s Office issued a decision of non-prosecution, dated 7 September 2010 and no. E.2010/474 K.2010/59, at the end of this investigation on the grounds that “due to the expiry of the prescribed time-limit for filing a case, it is not possible, according to the law, to file a criminal case against a person or persons, for the offences of neglect of public duty, misconduct in public duty and persistence in insubordination, which are likely to occur for performing any act in breach of the Command’s instructions that are concerning the preservation of confidential documents and instruments on military activities, their delivery to archives and controlled records offices in line with Command’s instructions, orders, directives and the other legislation as well as that are concerning seminar activities”.

7. Upon the complaints raised, by those accused tried within the case where a violation was found, following the Court’s violation judgment (see Sencer Başat and Others [Plenary], no. 2013/7800, 18 June 2014), the İstanbul Chief Public Prosecutor’s Office initiated an investigation no. 2014/116320 into the evidence relied on in this case and mainly comprising of digital data.

8. During this investigation, the prosecutor’s offices asked, by its letter of 25 November 2014, the Presidency of the General Staff to provide information as to whether CD and DVDs, which the applicant had submitted to the İstanbul Chief Public Prosecutor’s Office, contained “strictly confidential” and “confidential” documents concerning the Egemen Operation Plan for the security and military interests of the State.

9. In addition, the İstanbul Chief Public Prosecutor’s Office requested “a restriction” to be imposed on the counsel’s or representative’s power to examine the file content or to take a copy of documents therein, within the scope of the investigation conducted into the offences of “establishing an organization to commit an offence, obtaining confidential documents pertaining to the State’s security and fabricating an offence”, pursuant to Article 153 § 2 of the Code of Criminal Procedure dated 4 December 2014 and no. 5271 (the CCP). By its decision, dated 15 December 2014 and miscellaneous no. 2014/2922, the İstanbul Magistrate Judge’s Office no. 1 accepted the request as “there is a probability, on the part of the counsel or representative, of endangering the aim of the investigation in examining the content of the file or taking a copy thereof”.

10. Upon the request of the İstanbul Chief Public Prosecutor’s Office within the scope of the investigation, the İstanbul Magistrate Judge’s Office no. 1 ordered, by its decision dated 27 February 2015 and miscellaneous no. 2015/1203, a search of the applicant’s home and its extensions, his cars as well as on his body on the grounds that “the persons who had unauthorizedly taken away the documents, which were included in 19 CD and 4 DVD copies delivered [by the applicant] and which were concerning the Egemen Operation Plan and “strictly confidential” for the security and military interests of the State, from the 1^st Army Command had acted in unity with the suspect Mehmet Baransu under a criminal organization; that the suspect obtained documents pertaining to the State’s security; that in spite of being aware that these documents were strictly confidential, he did not submit them to the competent authorities but took a copy thereof and, according to his statement, destroyed the original copies; and that he disclosed information pertaining to the security and political interests of the State…”.

11. On 1 March 2015, the applicant was taken into custody within the scope of this investigation.

12. The applicant was, in general, asked whether the signatures and statements on the minutes indicating the delivery of certain documents that were subject-matter of the news published in Taraf Newspaper to the İstanbul Chief Public Prosecutor’s Office belonged to him, as well as how and/or from whom he had obtained these documents and digital data. He replied that the signatures and statements on the relevant minutes were of him; and that the documents and digital data had been delivered to him at two different dates by a man introducing him as a retired military officer, and he then submitted them to the İstanbul Chief Public Prosecutor’s Office.

13. He further stated that he examined these documents together with the journalists working in the same newspaper with him, namely A.A., Y.Ç., Y.O., K.T. and another journalist whose name he could not remember; that he did not print out or scan the documents; that he did not publish any document other than the coup plan; that he submitted all documents to the prosecutor’s office and security directorate; that any document of this nature did not appear in the course of the trial conducted subsequent to the published news or in the news subsequently published; that he did not destroy the original documents that he had examined but submitted them to the State’s authorities; and that they subsequently destroyed the CD copies they had taken for making news.

14. In his statement, he further indicated that he had examined the documents, subject-matter of the published news, together with the newspaper’s administration staff; however, he submitted the original documents subsequently delivered to him to the State’s institutions without sharing them with anyone else; that copies of certain documents in the case-file of the proceedings were also in his possession; that he also submitted all audio tapes delivered to him to the State’s institutions; that he used certain documents included in copies of these tapes in his book titled “Military Headquarters”; that these copies had been provided also to certain journalists; and that these audio tapes were made available through internet, journals and television.

15. Stating that the applicant had obtained documents pertaining to the State’s security from the suspects whose identities could not be identified yet and with whom he acted in unity under a criminal organization; that in spite of being aware that these documents were “strictly confidential”, he had taken a copy thereof instead of submitting them to the competent authorities and destroyed the original copies according to his statement; and that he disclosed information pertaining to the security and political interest of the State, the İstanbul Chief Public Prosecutor’s Office requested, on 2 March 2015,  the applicant’s detention for “establishing an organization to commit an offence”, “destroying, misusing and stealing by trickery  the documents pertaining to the State’s security”, “obtaining confidential documents pertaining to the State’s security” and “disclosing information pertaining to the security and political interests of the State and required to be kept confidential”.

16. The applicant was heard by the İstanbul Magistrate Judge’s Office no. 5 on 2 March 2015. During his hearing, he presented statements which were, in general, in line with his above-cited questioning by the İstanbul Anti-Terror Branch. The relevant part of his statements during the hearing were as follows:

“… While I was on the way to the workplace, the person, who was my journalistic source, approached me and … told ‘I will give you significant news’. I listened to what he explained to me and glanced through the documents he showed me… He mentioned of a coup plan… He showed me original documents in his possession. I looked through these documents among which there were also electronic ones. We met at a place like a tea garden. He took a copy of 3 DVDs and 1 CD and delivered them to me. At our first meeting, certain documents were original, and there were handwritten notes. There were also power point documents. I then took DVDs and CD to examine them. T.Ç., who was acting chief public prosecutor at the relevant time, asked me to deliver everything in our possession. I then submitted, in return for a minute, 3 DVDs and 1 CD in my possession to the prosecutor’s office after having taken a copy thereof… In the meantime, the military prosecutor’s office also asked us to submit documents… Then the administration of the newspaper submitted copies of the CDs… About 9 days after when the news was on the agenda, the same person holding a bag at his hand made me stop and told me that he wished to deliver me all original copies… I took the original copies and arrived at the workplace… [On the same day], I submitted the bag and documents to the public prosecutor B.B… I did not destroy, in any way, original copies of the documents and CDs given to me. Instead, I submitted them to the public prosecutor, who was the competent authority… DVDs I had received also included military operation plans along with the Sledgehammer coup plan such as the EGEMEN OPERATION PLAN. However, according to us, the latter plan did not involve any criminal element and it is indeed a game of war… As the documents pertaining to the EGEMEN OPERATION PLAN were not eligible for being reported as news and were confidential, we did not report any news concerning these documents and submitted them to the public prosecutor. As a matter of fact, we could not review all documents within the bag… We destroyed the DVDs and CDs including documents I had previously taken, after having printed out the documents necessary for us. We did not take any document from the bag. We took printouts from DVDs and CD that had been delivered to us previously. However, we did not take any printout of, or make any news concerning, the EGEMEN OPERATION PLAN, which was among the documents in the DVDs and CD. As the remaining documents were not of an interest for us and were matters to be dealt with by the public prosecutor’s office, we destroyed the copy in our possession … I delivered the documents to the public prosecutor’s office. If these documents have been stolen, it is not my duty to identify the persons having done so…”.

17. By the order of the Magistrate Judge’s Office dated 2 March 2015 and no. 2015/109, the applicant was detained on remand for “destroying, misusing or stealing by trickery the documents pertaining to the State’s security” and “obtaining confidential information pertaining to the State’s security”. The relevant part of the applicant’s detention order read as follows:

“…

3) The suspect’s detention was requested for destroying, misusing or stealing by trickery the documents pertaining to the State’s security and for obtaining confidential information pertaining to the State’s security. According to evidence present in the case-file, it has been revealed that the suspect obtained the plan known as the Sledgehammer coup plan, the DVDs, CDs and documents pertaining thereto as well as the Egemen Operation Plan. It has been further revealed that the Egemen Operation Plan is “STRICTLY CONFIDENTIAL”; that information in this plan was to be kept confidential for the security or domestic or foreign political interests of the State; and that 118 confidential documents in these CDs were also stolen. The suspect stated that he had destroyed himself the copies of these documents instead of delivering them to the relevant authorities. However, it has not been established for sure that he had destroyed them. It is still unknown where the confidential documents that could not be found are, in whose possession they are and for what purpose they would be used. There is no finding as to the person who was told by the suspect to have provided the documents and who introduced himself as a retired military officer. Is there also no finding whether there is any other person acting in union with that person. Taken the suspect’s acts as a whole, there are concrete evidence indicating strong suspicion of having committed the offences of destroying, misusing and stealing by trickery the documents pertaining to the State’s security as well as of obtaining confidential documents pertaining to the State’s security. Given the lower and upper limit of sentences prescribed in the law for these offences, it has been revealed that there is no condition prohibiting detention or posing an obstacle for trial set out in Article 100 et. seq. of the CCP. Given the amount of sentence likely to be imposed on the suspect for the imputed offence, it has been observed that there is reasonable suspicion that he may flee. It has been also concluded that the measure of conditional bail, which is a less severe measure, would remain insufficient at this stage pursuant to the principle of ‘proportionality’ regard being had to the facts that the investigation has not been completed yet, it has been still conducted in an exhaustive and multi-dimensional manner and to the probable penalties or measures prescribed for the imputed offences.” 

18. On 9 March 2015, the applicant challenged his detention order. The İstanbul Magistrate Judge’s Office no. 6 rejected, by its decision dated 16 March 2015 and no. 2015/1371, the applicant’s challenge with final effect as “the detention order was compatible with procedure and the law”.

19.  On 18 March 2015, the applicant filed a request for his release before the İstanbul Magistrate Judge’s Office no. 4. By its decision dated 19 March 2015 and miscellaneous no. 2015/1461, this magistrate judge’s office rejected his challenge on the grounds that “the detention order dated 02 March 2015 and no. 2015/109, which was issued by the İstanbul Magistrate Judge’s Office no. 5, was legitimate and that any concrete evidence to end his detention has not been submitted”.

20. On 31 March 2015, the applicant challenged the above-cited decision. However, by the decision of the İstanbul Magistrate Judge’s Office no. 5 dated 31 March 2015 and miscellaneous no. 2015/2029, his challenge was rejected with final effect on the ground that “the decision dismissing the applicant’s request for release was compatible with procedure and the law, and there was no new evidence justifying his release”.

  II. ASSESSMENT

21. The assessment will be presented under separate headings for the allegations declared inadmissible by the Court’s majority for being manifestly ill-founded and for the other allegations.

A. Alleged Incompatibility of the Magistrate Judge’s Offices with the Principles of Natural, Independent and Impartial Judge and Alleged Inability to Effectively Enjoy the Right to Challenge

22. The applicant maintained that the magistrate judge’s offices ordering his detention were contrary to the principle of legal judge; that they were not impartial and independent; and that he could not effectively enjoy his right to challenge as the documents forming a basis for the accusations were not shown to him, he could not examine the investigation file due to the restriction order imposed and there was a closed-circuit challenge mechanism which was devoid of safeguards afforded by a tribunal.  

23. The majority of the Court found these allegations inadmissible for being manifestly ill-founded.

24. In Article 37 of the Constitution where it is set out that no one may be tried by any judicial authority other than the legally designated court, and extraordinary tribunals with jurisdiction that would in effect remove a person from the jurisdiction of his legally designated court shall not be established, the principle of natural judge is laid down.

 25. In one of the Court’s judgment, this principle is defined as follows:

“The guarantee of natural judge is one of the conditions sine qua non for a state of law. Also in the previous judgments of the Court, the notion of natural judge is defined as pre-determination of the venue of jurisdiction to deal with the case before an offence is committed or a case occurs. In other words, this principle precludes establishment of tribunals subsequent to the occurrence of dispute or appointment of judges by taking into consideration the parties of the case.

…

In order for legal structure of a venue in respect of its establishment, duty, functioning and trial procedure to be followed to comply with the principle of natural judge, it is not per se sufficient to make such arrangement by law. In addition, this arrangement must be performed before the dispute to be dealt with occurs. Therefore, the principle of natural judge embodies not only “legality” but also “pre-determination.” (see the Court’s judgment dated 17 July 2013 and no. E.2012/146 K. 2013/93).

            26. Article 13 of the Convention also underlines “the right to an effective remedy before a national authority”. The ECHR considers the effective remedy as “a remedy which is not theoretical or illusory but practical and real, that is to say, effective”. Accordingly, a remedy whereby individuals could not yield an effective result for the protection of their rights, which is devoid of sufficient safeguards of review and exists only in appearance cannot be regarded effective within the meaning of both the Constitution and the Convention. Therefore, the right to an effective remedy may be ensured only when the appeal authority is independent internally and externally, entitled to amend the decision under its review when necessary and capable of offering the applicant with the opportunity of an effective review.

            27. According to the ECHR, in a review to be conducted under Article 5 § 4 of the ECHR, the judicial authority to conduct the review must be primarily authorized by law and must be independent and impartial. It must be also capable of conducting review of lawfulness and, if any unlawfulness is at stake, it must be entitled to release individuals. In this sense, the ECHR considers that the review conducted within the scope of Article 5 § 4 of the Convention inspires confidence in both the society and, specifically in criminal investigations, the suspect/accused. In the ECHR’s view, to give such confidence, the judicial authority to conduct review under Article 5 § 4 of the Convention (the guarantee of habeas corpus) must have certain qualifications. Given the judgments of the ECHR, such qualifications and features required to be inherent in the judicial organ which would review the request and in the procedure of deprivation of any kind of liberty including those under Article 5 § 1(c) of the Convention may be enumerated as follows: “guarantee of habeas corpus must be judicial in nature and offer suitable safeguards for the particular circumstances of the concrete incident; the review must be conducted in respect of lawfulness; there must be a trial compatible with the principles of adversarial proceedings and equality of arms; the trial must be re-conducted at reasonable intervals and concluded in a short time; in cases of detention under Article 5 § 1 (c) of the Convention (within the scope of criminal investigations), the person detained must be heard at reasonable intervals, and the decisions rendered must be reasoned. Even if the judicial body to review the request must not have all safeguards enshrined in Article 6 of the ECHR, which protects the right to a fair trial, it must have basic judicial qualifications, namely independence and impartiality as well as being established by law (guarantee of natural judge). During the proceedings, safeguards such as the right to access to a court, the right to legal assistance and the right to examine and cross-examine witnesses must be protected. The judicial organ must be entitled not only to express its advisory opinion but also to order release of the person in case of any unlawfulness. Consequently, the person concerned must be heard effectively by judge, and habeas corpus proceedings must offer a reasonable prospect or expectation of success both in theory and in practice. Otherwise, the remedy in question would not be considered as an effective remedy which must be exhausted” (see Mehmet Öncü, “the European Court of Human Rights and Pre-trial Detention (1): Reasonable Time for Detention”; Essays in Honour of Haşim Kılıç, Anayasa Mahkemesi Yayınları, Volume 1, Ankara 2015, pp. 1596-1598). The aim pursued in citing these requirements is to offer individuals, who have been deprived of liberty under Article 5 § 1 (c) of the Convention, an effective means of review also in the other exceptional circumstances.

            28. The ECHR indicates that one of the most basic opportunities inherent in Article 5 § 3 of the Convention is judicial review intended to minimize the risk of arbitrariness and to protect rule of law. It is for the judicial authorities to develop procedures appropriate for the requirements of the judicial review. However, these procedures must also comply with the Convention. This review must be conducted by “a judge” or “other officer authorized by law to exercise judicial power” pursuant to Article 5 § 3 of the Convention. The judge specified in this provision must satisfy certain conditions each of which constitutes an assurance for the person arrested. One of these most significant conditions is his independence and impartiality from the executive. In one of its judgment, the ECHR found a violation of Article 5 § 3 of the Convention since the military judge, who was sitting on the bench of the State Security Court that cannot be considered independent and impartial pursuant to Article 6 § 1, also lacked the capacity of independent judge entitled to order the applicant's detention on remand (see Bülbül v. Turkey, no. 47297/99, 22 May 2007, §§ 23 and 24).

            29. In general, impartiality means lack of bias, prejudice and interest which would have a bearing on the settlement of the case as well as having no opinion or interest vis-à-vis, in favour or to the detriment of the parties of the case. Impartiality has two aspects, subjective and objective. In this respect, not only the judge’s personal impartiality in the case but also the impression given by the court, as an institution, on an individual must be taken into consideration (see the Court’s judgment no. 2013/1780, 20 March 2014, §§ 61 and 62). Accordingly, judge cannot be biased and is also liable to create the impression, to the individuals being tried and to the society, that he is impartial. Therefore, administration of justice is not only sufficient, and the parties of the case must also observe and believe that it is administered in an impartial way. 

            30. The ECHR emphasizes that under the objective test of impartiality, what is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. In making examinations as to objective impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be objectively justified. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Hauschildt v. Denmark, no. 10486/83, 24 May 1989, § 48). For this, the judge is not necessarily required to have actually acted unfair or with bias. However, the personal impartiality of a judge must be presumed until there is proof, and it is found established, that the judge trying the case has showed bias and partial conduct, personal conviction or interest for one of the parties of the case.

            31. Judge’s independence and impartiality indeed differ from each other, but at the same time are overlapping with one another. As a matter of fact, a judge who is not independent cannot be expected to render an impartial decision. That is because, it is highly probable for a judge who is not independent and is exposed to pressures to give a decision not according to the law and his own conscience but in line with the requests of those who apply pressures on him.

            32. In a system of separation of powers, in case of any interference by the executive with a view to influencing the proceedings before a tribunal, objective impartiality will be impaired. As a matter of fact, in the case of Sovtransavto Holding v. Ukraine, the President of Ukraine drew the attention of the President of the Supreme Arbitration Tribunal to the need to protect the State's interests, while the proceedings initiated by the applicant Russian company in Ukraine was still pending. Without considering whether it had an impact on the outcome of the proceedings, the ECHR held that this expression of the Ukraine’s President casted doubt on the independence and impartiality of the Supreme Arbitration Tribunal (see Sovtransavto Holding v. Ukraine, no. 48553/99, 25 July 2002).

            33. Within the framework of the principle of natural judge taken in conjunction with the principle of impartiality, tribunals established at any date subsequent to the commission of the offence may cause doubts, on the part of the persons being tried, that they have been established for punishing them and are not therefore impartial.

            34. As regards the legal arrangement on the establishment of the magistrate judge’s offices, as is exhaustively discussed in the dissenting opinion of the Court’s judgment dated 14 January 2015 and no. E.2014/164 and K.2015/12, independence and impartiality of the judge to decide on the preventive measure is highly important for the reliability of the proceedings. It appears that challenges to the orders issued concerning the investigatory actions by the magistrate judge’s office are reviewed by “the magistrate judge’s offices that are interoperating and of the same instance” instead of “a different and higher independent tribunal”. Such a review does not, in the first place, inspire reasonable confidence in individuals having recourse to this remedy. As a matter of fact, the challenge procedure may be considered as an effective remedy which inspires confidence only when the magistrate judge’s offices are independent, and can operate without being impressed, from one another. However, pursuant to the legal arrangement as to these offices, “a review mechanism among equals” and thereby “a closed-circuit review procedure” have been introduced. It cannot be said that such a closed-circuit system may offer a reasonable prospect of success for, and thereby inspire confidence in, individuals who have resorted to this system. In fact, the primary aim of conducting such reviews through a system which is not functioning in a closed-circuit manner is to enable review of the challenged orders by “higher tribunals affording more safeguards” and, thereby, to inspire confidence in those concerned and in society beyond any doubt.

            35. Accordingly, in the present incident, confidence can be inspired, to a certain extent, primarily in those concerned and in the society for this legal remedy when a preventive measure –such as detention– which constitutes the severest interference with the personal liberty and security is ensured to be reviewed by different courts from different perspectives. In this way, individuals may be provided with the opportunity of a more reliable review. A review to be conducted in this respect with a different point of view would on one hand reduce the risk of “internal blindness” likely to be faced in a closed-circuit review system and reduce the risk of reflection of personal bias/preferences on the decisions to be rendered, on the other. Nevertheless, the legal arrangement as to the magistrate judge’s offices, which have introduced a closed-circuit system, has removed the opportunity of reviewing unlawfulness of detention, the severest interference with the personal liberty and security, by different courts from different perspectives. In this respect, individuals are deprived of a review mechanism of high standard, which is required in a state of law, since a closed-circuit system increases, in the first place, the risk of “internal blindness”. In the system introduced, judges ordering detention and reviewing this order are interoperating. In addition, in conjunction with the risk of “internal blindness”, repercussions of personal bias/preferences on orders/decisions in such a system and risk of making technical-legal errors are highly possible. That is because, the system operates in a closed-circuit manner and fails to provide an opportunity of effective review that is conducted from different points of view.

            36. It appears that Article 19 of the Constitution, titled “personal liberty and security”, is almost the same with Article 5 of the Convention, titled “right to liberty and security”, in respect of its wording, content and objective. This similarity is also observed between Article 19 § 8 of the Constitution and Article 5 § 4 of the Convention. These paragraphs are same in respect of their wording, content and objective. Pursuant to Article 19 § 8 of the Constitution, “Persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful”. The aim of safeguards afforded by both paragraphs is to provide individuals deprived of their liberty with the opportunity of an accessible and effective judicial review whereby they could argue for their liberty, which offers a reasonable prospect of success and is capable of inspiring confidence in individuals/accused, as well as to prevent public authorities from arbitrarily depriving individuals of their liberty.

            37. When Article 268 § 3 (a) of Law no. 5271 is considered within the scope of safeguards prescribed in Article 19 § 8 of the Constitution, it is observed in the first place that as the challenges are reviewed in a closed-circuit manner through the mechanism introduced in subparagraph (a), it cannot provide the opportunity of an effective judicial review offering a reasonable prospect of success and capable of inspiring confidence in suspects/accused. In this mechanism, in cases where there are two magistrate judges in the same venue of jurisdiction, they review and uphold each other’s decisions. In this respect, in adjudicating any challenge raised, judge acts with the awareness that he reviews decisions rendered by an authority who will in return review his decisions as well. Therefore, there occurs a vicious circle among magistrate judge’s offices reviewing challenges. This vicious circle/closed-circuit system leads the challenge procedure resorted to against the decisions of the magistrate judge’s offices to become “a non-effective review which exists only in appearance” for those concerned.

            38. In the present case, the applicant was detained on 2 March 2015 by the İstanbul Magistrate Judge’s Office no. 5. His challenge against the detention order was rejected by the İstanbul Magistrate Judge’s Office no. 6 on 9 March 2015. His request for release was dismissed by the İstanbul Magistrate Judge’s Office no. 4 on 18 March 2015. It is accordingly seen that the constitutional inconveniences and contradictions that are abstractly mentioned in the dissenting opinion of the Court’s judgment on the magistrate judge’s offices, which is dated 14 January 2015 and no. E.2014/164 K. 2015/12, and that are briefly explained above are also present in the concrete case.

            39. For these reasons, I did not agree with the majority’s decision as these allegations are not manifestly ill-founded and must therefore be examined on the merits. 

            B. Alleged Unlawfulness of Detention

            40. The applicant maintained that in spite of not having committed the imputed offences, his detention was ordered; that the document forming the basis for the offence and alleged to have been destroyed was not original but a photocopy; that he did not use the documents he had obtained for any purpose other than publishing; that in spite of having been previously taken into custody and released for several times, he did not attempt to flee; that however, the judicial authorities did not take into consideration this fact but accepted the risk of his fleeing by only taking into account the probable punishment to be imposed on him; that there was no risk of his tampering with the evidence; that in his detention order, the grounds as to why the conditional bail would remain insufficient in his case were not specified; that his detention was in breach of the “proportionality” principle; and that his challenges to the detention order and requests for release were dismissed without any justification.

            41. In its observations, the Ministry indicated that the applicant himself admitted having obtained the confidential document, the Egemen Operation Plan; that however, he did not publish it; and that he was also accused of destroying certain confidential documents obtained by him or using them for any other purpose.

            42. In his counter-statements against the observations of the Ministry, the applicant asserted that the severity of the punishment to be imposed cannot be a presumption for fleeing; that although he did not use the documents in his possession and report any news concerning them in his capacity as a journalist, it was for the journalist to decide which documents would be used within the scope of journalistic activities; that the journalist cannot be urged to disclose his journalistic source; and that his detention was arbitrary.

            1. General Principles

            43. In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. Article 19 §§ 2 and 3 provide that individuals may be detained under the circumstances enumerated therein with due process of law. Therefore, the right to liberty and security may be restricted only in cases where one of the circumstances specified in this article exists (see Ramazan Aras, no. 2012/239, 2 July 2013, § 43; and Murat Narman, no. 2012/1137, 2 July 2013, § 42).

            44. As in the provisions of the Constitution, Article 5 § 1 of the Convention sets forth that everyone has the right to liberty and security; and that no one can be deprived of his liberty save in the circumstances specified in Article (a)-(f) thereof and in accordance with a procedure prescribed by law (see Mehmet İlker Başbuğ, no. 2014/912, 6 March 2014, § 42). The aim pursued by Article 19 of the Constitution is to protect individuals from being arbitrarily deprived of their liberty, and any restriction under the exceptional circumstances specified therein must be compatible with the aim of this provision (see Abdullah Ünal, no. 2012/1094, 7 March 2014, § 38).

            45. Article 19 § 7 of the Constitution enshrines that persons under detention have the right to request trial within a reasonable time and to be released during investigation or prosecution. In this respect, in criminal proceedings, it is essential that the proceedings must be concluded with due diligence and within the shortest possible time.  Certain “exceptional measures” may be applied with a view to concluding the criminal proceedings within the shortest possible time and in a proper manner.

            46. Accordingly, in Article 19 § 3 of the Constitution, it is set forth that individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention.

            47. In this respect, detention of an individual depends primarily on existence of strong suspicion of his guilt. This is a condition sine qua non for the detention measure. To that end, charges must be supported with plausible evidence that may be considered strong. Nature of facts and information likely to be accepted as plausible evidence depends, to a significant extent, on the particular circumstances of the concrete case (see Hanefi Avcı, no. 2013/2814, 18 June 2014, § 46). Accordingly, plausible evidence to form a basis for strong suspicion must depend not on subjective feelings and opinions of public officials but certainly on objective material facts.

            48. Detention is the severest from of measure restricting personal liberty. Detention, which is a preventive measure, is removal of an individual’s freedom of physical movement “temporarily” before a final decision is rendered as to his guilt. It must be borne in mind that by its very nature, detention, which is “a temporary measure”, is not a way of punishment, that it cannot be resorted for the purpose of punishing and that “what is essential is release pending trial”.

            49. Therefore, this measure must be resorted only in exceptional circumstances. In case of an opportunity to attain the aims pursued with detention measure through other less severe preventive measures, the detention measure must not be applied. Otherwise, it would explicitly constitute a breach of the aim of detention measure and thus Article 19 of the Constitution.  

            50. Likewise, in our law, detention is a discretionary form of preventive measure, and even if conditions sought for detention are satisfied, it is not certainly necessary to resort to detention measure. Therefore, in recourse to detention, it must be taken into consideration that “personal liberty is essential whereas detention measure is exceptional”.      

            51. For having recourse to detention, a preventive measure of exceptional nature, certain conditions are to be satisfied. As mentioned above, a person may be detained on remand in cases where there is strong suspicion of his guilt. This is an element sine qua non for the detention measure. There must be plausible evidence, which may be considered strong, to support such suspicion. Nature of facts and information likely to be accepted as plausible evidence depends, to a significant extent, on the particular circumstances of the concrete case (see Mustafa Ali Balbay, no. 2012/1272, 4 December 2013, § 72).

            52. In this respect, strong suspicion cannot be based on feelings, fears or ideological, religious, political or moral biases of the pre-trial authorities and must be certainly supported by objective material facts. In other words, strong suspicion must be supported with material facts that would satisfy an objective observer.

            53. Secondly, there must also exist the grounds for detention specified in Article 100 § 2 of the CCP, along with the existence of strong suspicion. Pursuant to Article 100 thereof, an individual may be detained on remand only in case of the existence of facts indicating strong suspicion of his having committed an offence as well as of a ground for his detention. The grounds for detention are specified in the relevant provision. Accordingly, a detention order may be issued in case of (a) existence of concrete indications that suspect or accused would flee or hide himself and if (b) suspect’s or accused’s behaviours lead to a strong suspicion that he would 1) destroy, conceal or alter the evidence or 2) attempt to put pressure on witness, victim or anyone else (see Ramazan Aras, § 46).

            54. In addition to the strong suspicion of guilt, which is one of the conditions for lawful detention, at least one of the grounds for detention is to “continue to exist at every stage of detention”. These requirements as to grounds for detention must also be assessed “concretely” in respect of every suspect and “indicated in the reasoning of the detention order”. Unlike the Convention system, our national legislation does not make any distinction, on this matter, between the initial detention order and the subsequent reviews of detention.

            55. Pursuant to Article 101 of the CCP, in decisions ordering detention, ordering continued detention or dismissing the request for release, evidence which indicates strong suspicion of guilt, risk of feeling and tampering with evidence, the grounds for detention and the “proportionality” of detention measure is to be “supported with concrete fact” and “clearly” put forth. The question whether detention has been effected on legal grounds may be answered only through the examination of reasoning part of the decision ordering detention or ordering continued detention. Besides, accused/his defence counsel may properly defend himself/him upon being informed of the ground for his detention, and the authority to receive and review the challenges may conduct a review in respect thereof if they have been aware of the content of the reasoning. Through the reasoning part in the orders, it is shown that decisions are reasonable, non-contradictory and plausibly justified. Therefore, an order where merely the ground for detention −risk of fleeing or tampering with evidence− is specified and provisions of the relevant legislation are reiterated cannot be qualified as reasoned.

            56. Another condition required for resorting to detention measure is the existence of a balance between the aim pursued by ordering an individual’s detention and the detention which amounts to a severe interference with the right to personal liberty and security. As in the procedure of punishment, “the proportionality principle” must have a significant function in the application of preventive measures. In this respect, lawfulness of deprivation of an individual of his liberty is not sufficient for resorting to the detention measure. It must be also “necessary” under the circumstances of the concrete case (see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, § 68). This is also a requisite of the “necessity”, one of the elements inherent in the principle of “proportionality”, which is among the criteria allowing the restriction of fundamental rights and freedoms enshrined in Article 13 of the Constitution (see the Court’s judgment no. E.2015/40 K.2016/5, 28 January 2016). In detention orders, for the balance required to be struck between the legitimate aim pursued and the interference, the practice of conditional bail must be primarily considered and then it must be justified why the conditional bail would remain insufficient (see Engin Demir [Plenary], no. 2013/2947, 17 December 2015, § 69).

            57. It is for the Constitutional Court to review whether the conditions set out in Article 19 § 3 of the Constitution have been indicated in the reasoning parts of the detention orders, which are under examination within the scope of the individual application system, and whether, in resorting to detention measure under the circumstances of the present case, the proportionality principle -one of the criteria set out in Article 13 of the Constitution and allowing the restriction of fundamental rights and freedoms- have been complied with (see Erdem Gül and Can Dündar, § 69).

            58. The proportionality principle entails that the preventive measures giving rise to deprivation of liberty be applied in ascending order from less severe to the severest. If it is possible to attain the aim of the criminal proceedings through a less severe measure, this less severe measure must be resorted to in the first place. Otherwise, the interference with the personal liberty would be contrary to the proportionality principle, and the distinction between preventive measure and punishment would also be removed. As a matter of fact, Article 100 § 1 of the CCP sets forth that a detention order cannot be issued if it is disproportionate to the gravity of the offence, punishment likely to be imposed or preventive measure to be applied.

            59. In issuing a detention order as a requisite of the proportionality principle, the nature of the imputed offences and special condition of the individual must be taken into consideration; the alternative preventive measures likely to be applied instead of detention must be assessed within the scope of this principle; and accordingly, the grounds for detention must be “individualized”.

            60. In Article 5 § 3 of the Convention, it is set forth that an individual arrested or detained has the right to be promptly brought before a judge as well as the right to be tried within a reasonable time or to be released during the judicial prosecution. As the accused would be deemed innocent unless the case is concluded with a final conviction, the courts also need to take into consideration the presumption of innocence while deciding whether the detention is reasonable in the present case. Continued detention can be justified in a given case only if there are specific indications of a “genuine requirement of public interest” which, notwithstanding the presumption of innocence, outweighs the right to personal liberty and security safeguarded by Article 19 of the Constitution (see Murat Narman, § 61). It is primarily the inferior courts’ task to ensure that detention in a given case does not exceed a certain period of time. To that end, the inferior courts must examine all facts having a bearing on the above-cited public interest, and these facts and findings must be put forth in the decisions on the request for release (see Murat Narman, § 62).

            61. It should be also indicated that Article 19 § 7 of the Constitution cannot be seen as authorising pre-trial detention unconditionally provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (for a similar judgment of the ECHR, see Belchev v. Bulgaria, no. 39270/98, 8 April 2004, § 82). In its several judgments, the ECHR concludes that in cases where tribunals use stereotype expressions and grounds in decisions ordering detention and continued detention, this would be in breach of Article 5 § 3 of the Convention (see Çayan Bilgin v. Turkey, no. 37912/04, 8 December 2009; Kürüm v. Turkey, no. 56493/17, 26 January 2010; Erdem v. Germany, no. 38321/97, 5 July 2001; Shishkov v. Bulgaria, no. 38822/97, 9 January 2003; and Ilijkov v. Bulgaria, no. 33977/96, 26 July 2001, § 84).

            62. Besides, if the relevant law prescribes a presumption concerning the grounds for detention (as in the catalogue offences), it is mandatory to convincingly demonstrate the existence of concrete facts which require interference with personal liberty (for a similar judgment of the ECHR, see Contrada v. Italy, no. 27143/95, 24 August 1998, §§ 58-65).

            63. Pursuant to Article 101 of the CCP, existence of strong suspicion of guilt and grounds for detention as well as evidence proving the proportionality of detention measure are to be “justified and explicitly demonstrated by concrete facts” in the reasoning parts of the decisions on detention, continued detention or dismissal of the request for release.

            64. The interpretation of legal provisions on detention and their application to a given case are within the discretionary power of the inferior courts. However, in case of any practice performed on the basis of “explicitly unlawful or unconstitutional” considerations or any explicit arbitrariness in the assessment of evidence, such decisions giving rise to violation of any right or freedom must be examined within the individual application system. Any acknowledgement to the contrary is not compatible with the aim pursued in introducing the individual application mechanism (see Ramazan Aras, § 49).

            2. Assessment as to the Concrete Case

            65. In the present case, the detention order was issued for the offences of “obtaining confidential documents pertaining to the State’s security” and “destroying, misusing or stealing by trickery confidential documents pertaining to the State’s security” which are respectively set out in Articles 327 and 326 of the Turkish Criminal Code no. 5237.

            66. The constitutional review as to whether the right to personal liberty and security was breached must be conducted to the effect that would primarily reveal whether there exist “strong indication of guilt” and “ground for detention” which are the conditions required for resorting to detention within the meaning of Article 19 § 3 of the Constitution. Such review must be also conducted with respect to the criteria for the application of these conditions.

            67. It has been comprehended from the letter of the İstanbul Chief Public Prosecutor’s Office requesting the applicant’s detention and reasoning part of the detention order issued by the İstanbul Magistrate Judge’s Office no. 5 that the document underlying the applicant’s detention is the Egemen Operation Plan.

            68. It should be noted that the question how the Egemen Operation Plan was taken away from the plan room of the 1^st Army Command could not be clarified, and the investigation conducted by the military prosecutor’s office into this incident was concluded by its decision of non-prosecution of 7 September 2010, which constitutes one of the most important issues required to be taken into consideration in making an assessment as to the applicant’s allegations.

            69. E.S., whose statement was taken as a complainant on 4 December 2014 by the İstanbul Chief Public Prosecutor’s Office and who had made a presentation concerning the Egemen Operation Plan, stated that CDs that should have been in the plan room of the 1^st Army Command included, inter alia, the Egemen Operation Plan; however, this plan was not among the documents submitted by the applicant to the İstanbul Chief Public Prosecutor’s Office. The applicant’s detention is based on this document/evidence which the applicant had obtained beyond his own will and which is still lost and could be found neither by the investigation authorities. Therefore, it is apparent that both the reasoning of the detention order issued by the magistrate judge’s office and the reasoning of the judgment rendered by the Court’s majority depend on this document which could not be obtained from the applicant or anyone else and of which whereabouts were not also known by the investigation authorities.

            70. It is not also revealed where the audio tape pertaining to the above-mentioned presentation was or whether it was destroyed or not. However, this issue is indicated as one of the grounds in the reasoning part of the detention order. Nor did the investigation authorities reach any information on this matter.

            71. The applicant indicated that among the documents delivered to him by an unknown person, there were several military operation plans including the Egemen Operation Plan; and that as these documents were not eligible for being reported as news and were confidential in nature, he submitted them to the public prosecutor without making any news about their contents. Therefore, the Egemen Operation Plan, which was among the documents submitted by the applicant to the İstanbul Chief Public Prosecutor’s Office, was not mentioned in the news published in the Taraf Newspaper.  

            72. During the hearing, the applicant stated that on the way to the newspaper’s headquarters, he was given the relevant documents by a man who was his journalistic source. This fact was also acknowledged by the tribunal ordering his detention.

            73. In making an assessment as to the lawfulness of detention, the main issue required to be examined is whether relevant and sufficient reasons for detention has been applied. The magistrate judge’s office issuing the detention order primarily indicated in its reasoning that the Egemen Operation Plan had been obtained by the applicant. However, neither the suspect during his questioning and the hearing nor the complainant in his statements mentioned of this fact. Nor did the applicant’s file include any finding or evidence supporting it. It is explicit that these documents were provided to the applicant by another person.

            74. In the detention order, it is secondly indicated that 118 confidential documents in the CDs that were among the documents given the applicant by an unknown person were revealed to be stolen. The investigation conducted by the military prosecutor’s office in 2010 as to these stolen documents was ended by the decision of “non-prosecution”.

            75. In the detention order issued by the magistrate judge’s office, it is noted that documents given to the applicant by an unknown person or even copies thereof were not submitted to the relevant authorities. It is further indicated that in spite of the applicant’s statement that he had destroyed them, it has not been known yet whether they were indeed destroyed. It is also stated that it is still unknown whereabouts of these confidential documents, in whose possession they are and for what purpose they would be used; and that the person from whom the suspect obtained the documents could not be still identified. Accordingly, it is seen that on account of the documents submitted by the applicant to the public prosecutor’s office on 21 January 2010 as well as the next week, the applicant’s detention was ordered on 2 March 2015 for “destroying, misusing, obtaining and stealing by trickery any document pertaining to the State’s security” and “obtaining trickery any document pertaining to the State’s security”, based -to a significant extent- on “unknown”, “unidentified” and “non-existing” matters.

            76. It is beyond any doubt that such findings in the detention order amount to reversal of the burden of proof, which occupies an extremely important place in the criminal justice system. The burden of proof in detention could not be reversed by requiring the person detained to demonstrate the existence of grounds which would justify his release (for a similar judgment of the ECHR, see Suominen v. Finland, no. 37801/97, 1 July 2003, § 37). The burden of proof is on the national authorities, and the competent authorities must prove that the relevant person’s detention is compulsory (for a similar judgment of the ECHR, see Hutchison Reid v. the United Kingdom, no. 50272/99, 20 February 2003, § 71). The burden to prove material facts is on the public/competent authorities. Shifting of the burden of proof which is indeed on the competent authorities to the applicant and ordering the continuation of his detention as long as he could not convince the inferior courts cannot be accepted (for a similar judgment of the ECHR, see Ilijkov v. Bulgaria, no. 33977/96, 26 July 2001, § 87). In the present case, the burden to determine whether these documents were destroyed, where they were, by whom and for what purpose they were retained and to identify the person providing these documents was imposed on the applicant. Therefore, the burden of proof on these issues was imposed on him and relied on as a ground for his detention.

            77. It is also possible to observe this matter in the reasoning parts of the decisions dismissing the applicant’s challenges to his detention. The magistrate judge’s offices reviewing the challenges rejected them with a final effect on the grounds, which are in support of the above-cited consideration, that “… as no concrete evidence to end his detention was submitted” and “…as there is no new evidence to require his release”.

            78. In the reasoning of the judgment rendered by the Court’s majority finding no violation, it is stated “… regard being had to the above-mentioned content of the investigation file, the acts imputed to the applicant by the letter of the İstanbul Chief Public Prosecutor’s Office requesting his detention, the evidence relied on for these acts and the grounds specified in the detention order of the İstanbul Magistrate Judge’s Office no. 5, it has been concluded that there is strong suspicion that the applicant might have committed the imputed offences”. In the majority’s opinion, the grounds for the applicant’s detention were explained by stating that “… given the amount of sentence likely to be imposed on the applicant for the offences underlying the detention order, there is a risk of his fleeing, and the investigation has still been pending…”. Besides, it is indicated that “given the period of sanction prescribed in the law for the imputed offences, the conditional bail would be insufficient, and detention measure is proportionate…”. However, this approach does not comply with the established case-law of the Court. That is because, our Court has adopted a higher standard of protection particularly for detention orders which have a bearing especially also on another fundamental right (see Engin Demir, [Plenary], no. 2013/2947; and Erdem Gül and Can Dündar [Plenary], no. 2015/18567).

            79. In Article 19 § 3 of the Constitution, it is set forth that persons against whom there is strong indication of guilt may be detained by a decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention. However, in the present case, neither the prevention of the risk of his destroying or tampering with the evidence nor the underlying facts thereof were discussed in the grounds for the applicant’s detention and for dismissal of his challenges.

            80. The element sine qua non for detention of a person is the existence of strong suspicion of guilt, and thus the accusation must be supported with plausible evidence likely to be deemed strong. Accordingly, the plausible evidence to form a basis for strong suspicion is to be based not on subjective feelings and considerations of the public authorities but certainly on objective material facts. In the reasoning of the detention order issued by the magistrate judge’s office in the present case and the judgment reached by the Court’s majority, it was not expressed what the plausible evidence indicating strong suspicion of guilt, the condition sine qua non for detention, was but certain abstract considerations were merely mentioned of.

            81. It must be borne in mind that detention that is, out of the preventive measures, the severest form of temporary measure restricting” the personal liberty is not a punishment and cannot be used for the purpose of punishing; and that “what is essential is release pending trial”. Therefore, this measure should be resorted only in necessary cases and should not be applied if there is an opportunity to attain the aims pursued with detention through other forms of less severe preventive measures. Likewise, detention is an optional preventive measure in our law, and even if the conditions for detention are satisfied, detention measure is not necessarily applied in every case. Therefore, in applying detention measure, it must be borne in mind that “personal liberty is essential and detention measure is exceptional”. However, in the detention order of the magistrate judge’s office, the requirements of the real public interest overweighing the personal liberty were not indicated, and it was only mentioned, without any concrete consideration, that the detention measure was proportionate, and the conditional bail would be insufficient. It was not explained why a less severe preventive measure would be insufficient in the present case. Nor were the grounds as to why the detention measure was proportionate enumerated in a way that would satisfy an objective observer. As a matter of fact, Article 100 § 1 of the CCP sets forth that in case of not being proportionate to the gravity of the imputed offence, the punishment likely to be imposed or the preventive measure to be applied, a detention order cannot be issued. There were no objective material facts which were in support of his detention in the detention order. It should not be forgotten that even in the initial detention, it must be “convincingly” demonstrated in the detention order that detention is legitimate. However, the reasoning of the judgment of the Court’s majority did not contain any assessment in this respect. 

            82. Besides, apart from the existence of strong suspicion of guilt, it is also necessary for issuing a detention order that at least one of the grounds for detention would “continue to exist during every stage of detention”. It is also requisite that these conditions about the grounds for detention must also be assessed “concretely” in respect of each suspect and “indicated in the reasoning part”. Given the reasoning of the detention order in the present case, it has been observed that the grounds for detention were not legally justified, and it was presumed that facts and grounds requiring detention had already existed.

            83. Pursuant to Article 101 of the CCP, in decisions ordering detention, continued detention or dismissing request for release, evidence which indicates strong suspicion of guilt, the risk of fleeing and tampering with evidence, the existence of reasons for detention as well as proportionality of the detention measure must be “clearly” demonstrated and “justified with concrete facts”. The question as to whether detention is based on legal grounds may be revealed only through the examination of the reasoning of the decisions ordering detention or the continued detention.

            84. Regard being had to the detention order in the present case, it has been observed that existence of the risk of the applicant’s fleeing or tampering with the evidence was relied on as a ground for his detention; and that no ground as explained above was specified, but instead, stereotype expressions and sentences included in the relevant law were reiterated. Reiteration of phrases mentioned in the law does not mean that the decision is reasoned.

            85. For these reasons, I did not agree with the majority’s opinion that, as regards the alleged unlawfulness of the applicant’s detention, there was no violation of the right to personal liberty and security safeguarded by Article 19 § 3 of the Constitution.

            C. Alleged Violation of the Freedoms of Expression and the Press

            86. The applicant maintained that he was detained on remand for having obtained the documents which were subject-matter of the news published within the scope of the journalistic activities; that the request for his detention due to publishing the documents that were subject-matter of the news in question was rejected by the magistrate judge’s office due to the expiry of the time-limit set as a condition for a trial and prescribed for filing a criminal case in Article 26 of the Law no. 5187; that however, the magistrate judge’s office ordered his detention for obtaining the same documents; and that it was within the scope of journalistic activities to obtain and disclose the information which was subject-matter of the news.

            87. In its observations, the Ministry indicated that the very essence of the applicant’s complaints concerned the alleged unlawfulness of his detention; and that in this sense, the investigation conducted against the applicant was not initiated upon his reporting an incident as news in the press or for his possession of the documents in question.

            88. In his counter-statements against the Ministry’s observations, the applicant alleged that he was forced to disclose his journalistic source; that in his capacity as a journalist, he was entitled to retain certain confidential documents to inform the public; and that the element underlying his detention was the documents that indeed fell into the scope of journalistic activities.

            1. General Principles

            89. In several judgments rendered by the Court, the basic principles concerning the freedom of expression and the press are defined exhaustively (see Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, §§ 57-67, 80, 94; Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, §§ 30-38, Ali Rıza Üçer (2) [Plenary], no. 2013/8598, 2 July 2015, §§ 30-33; Ergün Poyraz (2) [Plenary], no. 2013/8503, 27 October 2015, §§ 33-39; and Medya Gündem Dijital Yayıncılık Ticaret A.Ş. [Plenary], no. 2013/2623, 11 November 2015, § 44).

            90. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for the progress of the society and sell-fulfilment of individuals. It is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (for a judgment of the ECHR, see Handyside v. the United Kingdom, no. 5493/72, 24 September 1976, § 49). Achievement of social and political pluralism depends on the ability to freely express any kind of opinion in a peaceful manner (see Emin Aydın, no. 2013/2602, 23 January 2014, § 41).

            91. Freedom of the press, a special aspect of the freedom of expression, does not only protect the right of the press to report and impart news. It is directly related to the public’s freedom to access to news and ideas for ensuring democratic pluralism. It is also an indispensable requirement of a democratic pluralism to ensure the public’s access to news and ideas within the scope of debates of public interest and thereby to ensure public’s participation in such debates. Accordingly, ability of the press, within the scope of journalistic ethics, to impart news and convictions, as the public “watchdog”, also contributes to ensure transparency and accountability in a democratic state (for similar judgments of the ECHR, see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, 7 February 2012, § 102; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, 20 May 1999, §§ 59 and 62; and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, 17 December 2004, § 71). A sound democracy requires supervision of the public authorities not only by the legislator or the judiciary but also by other actors in the political arena such as non-governmental organizations and the press or political parties (see Ali Rıza Üçer (2), § 55).

            92. In addition, in order for the press to exercise its right to report and impart news, it must first of all have access to news or information. The journalist’s ability to have access to any kind of news, information and ideas depends on the diversity of his journalistic sources and availability of the means for reaching news. The journalist’s right not to disclose his journalistic source must be protected for, at least, ensuring news to reveal the apparent truth of the relevant time when it is published. In this respect, keeping the journalistic source confidential is one of the basic requirements of the freedom of the press. This right is a part of the freedom of “receiving or imparting information or ideas without interference by official authorities” safeguarded by Article 26 of the Constitution. Accordingly, the phrase “the press is free and shall not be censored”, which is set out in the first sentence of Article 28 § 1 of the Constitution, also indirectly provides assurance for the protection of journalistic sources.

            93. In the view of the ECHR, the right of journalists not to disclose their sources constitutes a part of the right to information and is not a mere privilege (see Tillack v. Belgium, no. 20477/05, 27 November 2007, § 65). In cases where confidentiality of journalistic sources is not protected, sources may be deterred from assisting the press in informing the public on matters of public interest.  As a result, the task and role of the press to provide accurate and reliable information and create an informed public opinion may be undermined. Although the freedoms of expression and the press may be restricted, any interference with the confidentiality of journalistic source cannot be compatible with the press freedom, which is safeguarded under Article 28 of the Constitution, unless it is justified by an overriding requirement in the public interest (for similar judgments of the ECHR, see Goodwin v. the United Kingdom, no. 17488/90, 27 March 1996, § 39; Roemen and Schmut v. Luxemburg, no. 51772/99, 25 February 2003, § 46; and Voskuil v. the Netherlands, no. 64752/01, 22 November 2007, § 65).

            94. With respect to the disclosure of journalistic sources, Article 12 of Law no. 5187 sets forth that publishers, chief editors and authors of periodicals cannot be forced to disclose their journalistic sources of any kind including information and documents and to testify on this matter. Thereby, confidentiality of journalistic sources is under the protection of this Law. This provision does not introduce any exceptions with respect to the principle of the protection of confidentiality of these sources.

            95. In addition, the freedoms of expression and the press are not absolute rights which may be subject to restrictions. As a matter of fact, the grounds for such restriction are set out in Article 26 § 2 of the Constitution, which concerns the freedom of expression. In restricting the freedom of the press, Articles 26 and 27 of the Constitution will in principle apply pursuant to Article 28 § 4 thereof. Besides, exceptional circumstances whereby the freedom of the press may be restricted are indicated in Article 28 §§ 5, 7 and 9 of the Constitution (see Bekir Coşkun, § 37).

            96. Accordingly, the freedoms of expression and the press may be restricted for the purposes of “maintaining national security”, “preventing offences”, “punishing offenders”, “preventing disclosure of information duly classified as State secret” and “prevention of disclosure of confidential information of the State”, pursuant to Articles 26 § 2 and 28 § 5 of the Constitution. To that end, it is possible to criminalize, and impose punishment for, the act of disclosing confidential information of the State through the press. Nor is there a constitutional obstacle before applying detention measure, during the investigation and prosecution to be carried out, in respect of press members alleged to have performed such acts (see Erdem Gül and Can Dündar, § 89). Indeed, also according to the ECHR, the press must act in compliance with the rules of journalistic ethics in performing its duties. As regards a very delicate matter such as national security, the State may impose certain restrictions on the news to be made by journalists and, accordingly, public authorities may hinder reporting of certain news (see Observer and Guardian v. the United Kingdom, §§ 61-65).

            97. However, restrictions to be imposed on the freedoms of expression and the press for these purposes must comply with the principles of “being necessary in a democratic society” and “proportionality”, which are among the general conditions laid down in Article 13 of the Constitution for imposing a restriction. The principle of being necessary in a democratic society must be interpreted on the basis of pluralism, tolerance and broadmindedness. The proportionality principle reflects the relation between the aim of the restriction and the means used to attain this aim. The review of proportionality is to review, based on the aim pursued, the means chosen for attaining this aim. Therefore, in interferences with the freedoms of expression and the press, it must be assessed whether the means chosen for attaining the aim pursued is “practicable”, “necessary” and “proportionate” (see Fatih Taş, §§ 90, 92 and 96). 

            98. Accordingly, in determining whether a judicial or administrative interference with the freedoms of expression and the press has been “necessary”, the Court assesses whether the interference has met “a pressing social need” (see Bejdar Ro Amed, no. 2013/7363, 14 April 2015, § 68; and for a similar judgment of the ECHR, see Handyside v. the United Kingdom, § 48). Such an assessment to be made within this framework must be conducted on the basis of the grounds relied on by the public authorities.

            99. As regards the examination as to whether the other necessary conditions for issuing a detention order pursuant to Article 100 of the CCP exist, it should be primarily noted that, within the framework of the established judgments of the Court, specific condition of the person whose detention is ordered or, if detained on remand, who requests to be released, as well as the general circumstances of the case must be taken into consideration in decisions ordering detention and continued detention. Thereby, it is necessary to individualize the grounds for detention in every case (see Mustafa Ali Balbay, § 116).

            100. Besides, the link between the detention measure and democratic society must also be mentioned. The notion of “democratic society” cited in several provisions of the Constitution must be interpreted with a contemporary understanding which promotes freedom. The democratic society test clearly demonstrates the parallelism between Article 13 of the Constitution and Articles 9, 10 and 11 of the Convention where this test is applied. Accordingly, the democratic society test must be interpreted on the basis of pluralism, tolerance and broadmindedness (for similar judgments of the ECHR, see Handyside v. the United Kingdom, no. 5493/72, 7 December 1976, § 49; and Başkaya and Okçuoğlu v. Turkey, nos. 23536/94 and 24408/94, 8 July 1999, § 61).

            101. As a matter of fact, pursuant to the established case-law of the Court, democracies are the regimes where fundamental rights and freedoms are ensured and safeguarded to the widest extent. Restrictions impairing the very essence of fundamental rights and freedoms and thereby rendering them non-enjoyable cannot be considered to comply with the requirements of a democratic society. Therefore, fundamental rights and freedoms may be restricted only by law and to the extent strictly necessary for maintaining democratic society only in exceptional cases and provided that the very essence of these rights and freedoms are not infringed upon (see the Court’s judgment no. E.2006/142 K.2008/148, 24 September 2008).

            102. Another safeguard to be applied in any kind of restriction to be imposed on fundamental rights and freedoms is “the proportionality principle” set out in Article 13 of the Constitution. If the restriction halts the enjoyment of any fundamental right or freedom by infringing upon its very essence, hampers its enjoyment to a significant extent, renders it ineffective or impairs the balance between the means of restriction and the aim pursued in a way which would be in breach of the principle of proportionality, then the restriction would be contrary to the requirements of a democratic society (see Abdullah Öcalan, no. 2013/409, 25 June 2014, § 94).

            103. Pursuant to the Court’s judgment, proportionality demonstrates the relation between the aim pursued and the means for restricting fundamental rights and freedoms. The proportionality review is the review, on the basis of the aim pursued, of the means chosen for attaining this aim (see Sebahat Tuncel, no. 2012/1051, 20 February 2014, § 84; and Abdullah Öcalan, § 97). Therefore, for instance, in interferences with the right to trade union, it must be considered whether the means chosen for attaining the aim pursued is suitable, necessary and proportionate.

            104. As also mentioned above, in decisions ordering detention and continued detention, it is compulsory to take into consideration the specific condition of the person requesting release as well as general circumstances of the case and thus to individualize the grounds for detention. Particularly in cases where restriction is imposed, due to detention, on any fundamental right and freedom involving general public interest such as the “freedom of expression”, “freedom of the press”, “right to stand for elections and engage in political activities as a member of parliament”, “right to trade union”, along with on the right to personal liberty and security, particular regard must be had to the questions whether the measure is proportionate and the grounds relied on are “relevant” and “sufficient”. That is because, it must be taken into consideration that resorting to detention measure, which leads to more severe consequences than the other preventive measures, intensively and to a wide extent may render these fundamental rights and freedoms ineffective and non-functional. 

            105. As a matter of fact, in its judgments of Mustafa Ali Balbay (no. 2012/1272, 4 December 2013) and Mehmet Haberal (no. 2012/849, 4 December 2013), the Court noted that regard being had to the applicants’ capacity as a member of parliament, the right to stand for election and engage in political activities as well as the right to personal liberty and security must be taken into consideration in the decisions ordering their continued detention. The relevant part of the reasoning reiterated in both judgments reads as follows:

“The exception introduced in Article 83 of the Constitution with reference to Article 14 thereof must be interpreted narrowly and in favour of the freedom, regard also being had to the right to stand for elections set forth in Article 67 of the Constitution. Therefore, if the person whose continued detention has been ordered is a member of parliament, a new conflicting value is added to those which have already existed. Accordingly, along with the right to personal liberty and security, regard must also be had to the public interest which is deprived of as the elected member of parliament cannot engage in legislative activities for being detained on remand. In this scope, in ordering the continued detention of the persons who have been elected as a member of parliament, the courts are to demonstrate, relying on concrete facts, the existence of an interest required to be protected and overweighing the interest deriving from both the right to personal liberty and security and the enjoyment of the right to stand for elections and engage in political activities. Thereupon, in assessing whether the reasonable period has been exceeded, it must be also considered whether the allegations raised by the applicant upon being elected as a member of parliament were assessed properly in the decisions ordering his continued detention. Therefore, if a proportionate balance is struck between the applicant’s rights to engage in political activities and to represent as an elected member of parliament and the public interest in continuation of his detention, it may be concluded that the grounds for continued detention are relevant and sufficient.

Accordingly, in reviewing the detention status of a member of parliament tried on account of a criminal charge within the scope of Article 14 of the Constitution, it must be taken into consideration that the preventive measure in the form of detention may render the right to stand for elections ineffective, on condition that his investigation is initiated before the elections …

In ordering continued detention, it is compulsory to take into consideration the specific condition of the person requesting release as well as general circumstances of the case and thus to individualize the grounds for detention. The courts assessing the applicant’s requests for release failed to sufficiently individualize the grounds they relied on while dismissing these requests and to establish concrete and plausible facts indicating the risk, on the part of the applicant elected as a member of parliament, of fleeing or tampering with evidence.”

            106. The approach adopted in this judgment must also be applied not only in decisions ordering continued detention but also in rendering initial detention order, and specific conditions of the person whose detention has been ordered must be taken into consideration.

            107. In this respect, within the scope of this judgment, if the person whose continued detention has been ordered is a member of parliament, a new conflicting value arises. Besides, the public interest deprived of due to his inability to enjoy his rights to engage in political activities and to represent along with the right to personal liberty and security must also be taken into consideration. Likewise, in cases where a journalist is detained on remand, freedoms of the press and expression must also be taken into account. The Court also adopted the same approach in respect of the freedoms of the press, association and the right to trade union that are the other aspects of the freedom of expression and association (see Engin Demir, §§ 62 et. seq.).

            108. In the ECHR’s point of view, the nature and severity of the sanctions imposed are also the factors to be taken into account when assessing the proportionality of an interference with the exercise of the freedom of expression as well as with the different aspects of this freedom, namely freedoms of the press, freedom of association, right to engage in political activities and right to trade union. If the sanction imposed, even if not severe in nature, has a deterrent effect on the applicant, the ECHR finds it problematic. According to the ECHR, the sanction imposed must be justified on the basis of the above-mentioned criteria (see AxelSpringer AG v. Germany [GC], no. 39954/08, 7 February 2015, § 95). It acknowledges that even not severe penalties imposed within the scope of a trade-union activities are of a nature which would deter union members from engaging in trade-union activities performed in the pursuit of their own interests (see Kaya and Seyhan v. Turkey, no. 30946/04, 15 December 2009, § 30; Karaçay v. Turkey, no. 6615/03, 27 June 2007, § 37; and Ezelin v. France, no. 11800/85, 26 April 1991, § 43).

            109. In striking a balance between the measure prescribed and the fundamental right or freedom to be restricted or eliminated, due diligence must be paid to the applicability of the other preventive measures which would not prevent the exercise of this right or freedom. In case of existence of the grounds for detention specified in Article 100 of the CCP in an investigation conducted into an offence, Article 109 thereof sets forth the suspect may be subject to a conditional bail instead of being detained on remand. It has been further observed that number of such practices have increased by virtue of the amendments made to Article 109 by Law no. 6352 on Amendment to Certain Laws to Increase the Efficiency of Judicial Services and Suspension of Penalties and Trials Regarding Offences Committed via the Press, dated 2 July 2012.

            2. Assessment of the Present Case

            110. In the present case, given the decisions dismissing the challenges to initial detention and the continued detention, it appears that the magistrate judge’s offices ordering the applicant’s detention had relied on the existence of concrete evidence indicating strong suspicion of guilt, the lower and upper limits of penalties prescribed in the law for these offences, the amount of sentence likely to be imposed on the suspect for the imputed offence, the risk of his fleeing as well as on the facts that the imputed offence is among the ones specified in Article 100 et. seq. of the CCP and that the investigation has been still pending.

            111. However, these decisions do not indicate on the basis of which plausible evidence the strong suspicion of guilt was found and the reasons indicating the risk of the applicant’s fleeing. Nor is there any explanation, in the reasoning of the detention order, as to the legal and logical foundations of the risk of fleeing. The question as to why the applicant, who had himself delivered the documents in his possession to the prosecutor’s office, would intend to flee should have been explained in a way that would satisfy an objective observer.

            112. Likewise, as the evidence relied on is the documents that had been given to the applicant and were then submitted to the prosecutor’s office, there is no risk of the applicant’s tampering with the evidence. Regard being had to these considerations, it has been observed that the grounds specified in the detention order are “formulaic” or “stereotype” reasons that are indicated by the Court in its several judgments.

            113. In the decisions ordering detention and continued detention, the reasons why the provisions of conditional bail were not applied are not discussed. As from 5 July 2012 when the amendment introduced by Law no. 6352 and dated 2 July 2012 took effect, it became possible for the applicant to avail himself of the provisions of conditional bail which are prescribed in Article 109 § 3 of the CCP instead of being detained on remand. It has been nevertheless observed that, in the above-mentioned decisions ordering continued detention, the measures of conditional bail were not sufficiently taken into consideration for the balance required to be struck between the legitimate aim pursued and the interference in question, and the question as to why these measures would remain insufficient was not justified. However, in order for demonstrating that the detention measure is proportionate, it must be proven that the measure of conditional bail has remained insufficient. Regard being had to all these considerations, it is explicit that, in ordering the applicant’s continued detention, no proportionate balance was struck between the public interest expected of pre-trial detention and the applicant’s right to personal liberty and security (in the same vein, see Engin Demir [Plenary], § 69).

            114. Another element relied on by the magistrate judge’s office ordering the applicant’s detention is the fact that the imputed offence is one of the “catalogue” offences. In the reasoning of the decision ordering his continued detention, it is indicated that there is a legal presumption indicating the existence of grounds for detention in respect of certain offences including those imputed to the applicant within the scope of Article 100 § 3 of the CCP (risk of fleeing or tampering with evidence and putting pressure on witnesses, victims and other persons).

            115. Even if the relevant law includes a presumption on the reasons for detention, the existence of concrete facts which necessitates an interference with personal liberty must be convincingly demonstrated (see Contrada v. Italy, no. 27143/95, 24 August 1998, §§ 58-65). Accordingly, the ECHR stresses that any system of mandatory detention on remand is per se incompatible with Article 5 § 3 of the Convention (see Ilijkov v. Bulgaria, no. 33977/96, 26 July 2001, § 84).

            116. However, it has been observed that in the present case, existence of the concrete facts necessitating detention was not proven, and the relevant judicial authorities confined themselves to make a reference to the fact that the imputed offence was one of the catalogue offences laid down in Article 100 § 3 of the CCP (for similar judgments of the ECHR, see Galip Doğru v. Turkey, no. 36001/06, 28 April 2015, § 58; and also see Engin Demir [Plenary], § 66).

            117. Besides, in making an assessment as to the principles of being necessary in a democratic society and proportionality, probable “deterrent effect” of the interferences with the freedoms of expression and the press both on the applicants and, in general, on the press must also be taken into consideration (see Ergün Poyraz (2), § 79; and for similar judgments of the ECHR, see Nedim Şener v. Turkey, § 122 and Şık v. Turkey, § 111).

            118. In the present case, it is explicit that the grounds for the detention of the applicant, who was a journalist and whose detention and continued detention were ordered on accounts of the documents delivered to him by an unknown person within the scope of journalistic activities, may have a deterrent effect on his freedoms of expression and the press.

            119. For these reasons, I consider that the Court should have found a violation of the freedoms of expression and the press, which are safeguarded by Articles 26 and 28 of the Constitution respectively, in conjunction with the right to personal liberty and security safeguarded by Article 19 § 3 of the Constitution. Therefore, I did not agree with the conclusion reached by the Court’s majority that there was no violation of the freedoms of expression and the press safeguarded by Articles 26 and 28 of the Constitution.